BOGGS, Circuit Judge.
Plaintiff William Sheffield challenges several municipal ordinances enacted by the city of Fort Thomas, Kentucky, alleging that the ordinances violate the United States and Kentucky Constitutions and that the ordinances are preempted by Kentucky state statutes and administrative regulations. The district court rejected all of Sheffield's challenges. With one exception, we agree with that conclusion. We hold, however, that the district court erred in concluding that Kentucky administrative regulations have no preemptive force as against Kentucky municipal ordinances. We therefore affirm in part and reverse in part.
Between 1950 and the present day, the deer population within the state of Kentucky increased approximately five-hundredfold. According to the Kentucky Department
Beginning in October 2006, a city administrative officer worked with DFWR representatives to develop a deer-management plan. Various options were considered, ranging from implementing a catch-and-release program to administering a birth-control drug derived from pig ovaries. In the end, the City Council opted for a three-part approach: (1) educating the public about deer-control tactics; (2) prohibiting deer feeding; and (3) permitting the hunting of deer by bow and arrow within the city limits, which DFWR representatives had advised was the most effective means of controlling the deer population in an urban area.
The second and third parts of this plan required several additions and amendments to the Fort Thomas City Code (the "Ordinances"), which the City Council enacted in December 2007. To implement the deer-feeding ban, the City Council adopted an ordinance (the "Deer-Feeding Ordinance") which read in relevant part:
Ft. Thomas, Ky. Ordinance O-34-2007 (Dec. 3, 2007) (codified at Ft. Thomas, Ky.Code §§ 91.50-52).
To implement the remainder of its plan, the City Council had to modify § 95.05 of the City Code, entitled "Discharge of Firearms and Other Weapons," which provided at the time that "[n]o person [other than a police officer] shall discharge any firearm
Ft. Thomas, Ky. Ordinance O-35-2007 (Dec. 17, 2007) (codified at Ft. Thomas, Ky.Code § 95.05).
Finally, to address the disposal of the carcasses of the deer (and other animals) that could now be shot by bow and arrow within the city limits, the City Council enacted another provision (the "Field-Dressing Ordinance"):
In December 2007, Fort Thomas residents Lisa Kelly and William Sheffield filed suit in Kentucky state court against the city, as well as various city officials in their individual and official capacities, alleging that the Ordinances violated various provisions of the United States and Kentucky Constitutions and were preempted by Kentucky state statutes and administrative regulations. The defendants removed the complaint to federal court. In two separate orders dated January 8, 2009 and April 23, 2009, the district court granted the defendants summary judgment as to all claims. See Kelly v. City of Fort Thomas, Ky., 610 F.Supp.2d 759 (E.D.Ky. 2009).
Plaintiffs timely appealed; Kelly, however, withdrew from the lawsuit after she was elected to the very City Council whose membership she was suing. Sheffield, now the sole appellant, has abandoned many of the claims asserted before the district court. His remaining claims are: (1) that all three Ordinances are preempted by Chapter 150 of the Kentucky Revised Statutes, which broadly regulates the Commonwealth's wildlife resources, and/or by Chapter 301 of the Kentucky Administrative Regulations, which more concretely regulates hunting; (2) that the Bow-and-Arrow Ordinance violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution and § 2 of the Kentucky Constitution because it infringes on his asserted "fundamental right to be free from a risk of serious bodily harm" and/or lacks a rational basis; and (3) that the Deer-Feeding Ordinance violates those same constitutional provisions because it is void for vagueness.
We review de novo a district court's order granting summary judgment. Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir.2009). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir.2009) (quoting Fed.R.Civ.P. 56(c)). In reviewing the district court's decision, we view all evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Sheffield argues that the Ordinances are preempted by Chapter 150 of the Kentucky
The declared purpose of Chapter 150 is to protect and conserve the wildlife of this Commonwealth so as to insure a permanent and continued supply of the wildlife resources of this state for the purpose of furnishing sport and recreation for the present and for the future residents of this state; to promote the general welfare of the Commonwealth; to provide for the prudent taking and disposition of wildlife within reasonable limits, based upon the adequacy of the supply thereof; to protect the food supply of this state, and to insure the continuation of an important part of the commerce of this state which depends upon the existence of its wildlife resources.
Ky.Rev.Stat. § 150.015(1). Among many other things, that chapter establishes the DFWR in order to "enforce the laws and regulations adopted under this chapter relating to wildlife," id. § 150.021; empowers the DFWR to issue regulations regarding hunting season dates, bag limits, weapons usable for hunting, and locations where hunting is permitted, id. § 150.025; implements a regime governing hunting licenses, id. §§ 150.170-236; and prohibits the "discharge of any firearm, bow and arrow, crossbow or other similar device, upon, over, or across any public roadway" anywhere in the state, id. § 150.360(4). Chapter 150 does not address whether hunting is permitted or prohibited in urban areas (or whether cities have any say in the matter). Nor does it address the proper method of disposal of animal carcasses, other than to state that (1) landowners without hunting licenses who kill wild animals causing damage to their property must obtain the DFWR's authorization if they wish to "use the carcass," id. § 150.170(7); and (2) licensed hunters may place animal carcasses in cold storage or mount them, id. §§ 150.305(2), 150.411(2).
The DFWR, in turn, has promulgated a variety of regulations associated with wildlife. One relevant provision, among other things, (1) specifies various windows of time between September and January when deer may be hunted with various weapons; and (2) divides Kentucky's counties into four "zones" and specifies how many deer a person may "take" per year in each zone. 301 Ky. Admin. Regs. 2:172. This regulation does not address where deer hunting is permitted or prohibited within each zone (e.g., in urban areas). Another relevant regulation prohibits the feeding of wildlife from March 1 through May 23, but provides that "[w]ildlife may be fed year round within the curtilage of the home." 301 Ky. Admin. Regs. 2:015 § 2(2). Lastly, a regulation provides that killed deer must be logged "before moving the carcass from the site where taken," id. 2:172 § 9(1), and that a carcass must be tagged if it "leaves the possession of [the] hunter," id. § 10(2), but does not otherwise address the disposal of carcasses.
The obvious jumping-off point for our preemption analysis is Ky.Rev.Stat. § 82.082, known as the "Home Rule Statute." Under that statute, "[a] city may exercise any power and perform any function within its boundaries . . . that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute." Ky.Rev.Stat. § 82.082(1) (emphasis added). The Home Rule Statute further provides that "[a] power or function is in conflict with a statute if it is expressly prohibited by a
Where a municipal ordinance conflicts with a constitutional provision or statute, the ordinance "is preempt[ed]," Lexington Fayette County Food & Beverage Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 750 (Ky. 2004); in other words, the municipality is "without authority" to enact that ordinance, and the ordinance must be struck down as "invalid[]." Ky. Licensed Beverage Ass'n v. Louisville-Jefferson County Metro Gov't, 127 S.W.3d 647, 649 (Ky. 2004).
Sheffield first argues that the Bow-and-Arrow Ordinance is preempted because it allows the crossbow hunting of deer during windows of time when 301 Ky. Admin. Regs. 2:172 § 5 (entitled "Statewide Season Dates") forbids it. We set aside for the moment the issue of whether administrative regulations have preemptive force vis-à-vis municipal ordinances, as we conclude that Sheffield is simply mistaken with respect to what the Ordinance purports to authorize.
To wit, the Bow-and-Arrow Ordinance does not affirmatively provide that deer may be hunted within city limits during the time periods specified therein; rather, it merely provides that arrows may be discharged from bows and crossbows within city limits during those times. The Ordinance's text is entirely agnostic as to the purpose behind the discharge: it might be for the purpose of hunting deer, state laws and regulations permitting, but it might also be for target practice or any number of other reasons. The DFWR regulation to which Sheffield points does not prohibit the discharge of arrows from crossbows per se at any time. Because the Ordinance does not purport to "permit[] conduct which is prohibited by [the regulation]," there is no explicit conflict between them. Louisville & Nashville R.R. Co. v. Commonwealth ex rel. City of Covington, 488 S.W.2d 329, 330 (Ky.1972).
Sheffield also argues that the Bow-and-Arrow Ordinance is preempted because it purports to regulate hunting, notwithstanding the fact that "[t]he State has already exercised its supreme power regarding hunting by enacting a [comprehensive] scheme of legislation" at Chapter 150 of the Kentucky Revised Statutes. Appellant's Reply Br. at 6. The Kentucky courts have never addressed whether Chapter 150 is a "comprehensive scheme of legislation" or how broad its preemptive effect might be. However, our analysis of the Kentucky case law satisfies us that the Kentucky courts would not hold the Bow-and-Arrow Ordinance preempted by Chapter 150 as a whole.
Id. at 521 (quoting In re Hubbard, 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809, 815 (1964)). The court noted that "that there are many individual situations where local police power may operate on the same subject matter to supplement the general law by providing for additional reasonable requirements." Id. at 521-22. The fundamental question, the court observed, is whether "the General Assembly intend[ed] to exclusively occupy th[e] area of regulations." Id. at 521 (emphasis added); see also Wright v. Gen. Elec. Co., 242 S.W.3d 674, 678 (Ky.Ct.App.2007) ("[Legislative] intent is the touchstone of all preemption analysis.") (quoting Keck v. Commonwealth ex rel. Golden, 998 S.W.2d 13, 15 n. 4 (Ky.Ct.App.1999)).
Defendants argue that even if Chapter 150 comprehensively regulates the treatment of the Commonwealth's wildlife resources, including the hunting thereof, the Bow-and-Arrow Ordinance is not preempted because it is not a "hunting ordinance" in the first place. After all, under the Home Rule Statute, "comprehensive scheme" preemption only exists where "there is a comprehensive scheme of legislation on the same general subject" as the challenged ordinance. Ky.Rev.Stat. § 82.082(2) (emphasis added). Indeed, as we have already noted, the Ordinance on its face regulates only when bows and arrows may be fired within city limits. This certainly weighs against a finding of preemption.
Further, given the historical background against which Chapter 150 was enacted, we cannot conclude that the General Assembly intended to preclude municipalities from regulating when weapons may be fired within their borders. See Do, 674 S.W.2d at 521 (observing that preemption turns on "the General Assembly['s] inten[t]"). Kentucky's high court noted over seventy years ago—well before Chapter 150 was enacted—that "[p]ractically all cities and towns have ordinances making it unlawful to discharge firearms therein. . . ." Lexington Ry. Sys. v. True, 276 Ky. 446, 124 S.W.2d 467, 469 (1939). And almost twenty years before that, the same court noted that "for at least the half of a century, [i.e., since 1870,] the Legislature has shown a consistent purpose and intention" that "the governing authorities of . . . municipalities [have] the right to make the discharge of firearms within their limits lawful [or unlawful] within certain limits, or at certain places or on certain occasions, thus bestowing upon such authorities a
It is unlikely that when the General Assembly enacted Chapter 150, it intended to upend this long-standing tradition sub silentio and arrogate the topic of intra-city weapon discharge to its exclusive control. See Valley Vista Servs., Inc. v. City of Monterey Park, 13 Cal.Rptr.3d 433, 438 (2004) (stating that where "local [governments] through their traditional police power have [historically] played the dominant role in [a] matter[]," it is less likely that the legislature intended to "impliedly preempt the field").
In fact, at oral argument, Sheffield's counsel conceded Fort Thomas's authority to impose an absolute ban on discharging any weapons within city limits at any time, as it had formerly done. Given this concession, Sheffield cannot seriously dispute that the City Council had the power to ban discharging less than all weapons at less than all times, as the greater power typically includes the lesser. Sheffield's actual complaint thus does not appear to be that the enacted text is an inherently improper exercise of municipal authority, but rather, that the City Council's motive in enacting it—the hope that hunters would take advantage of it to kill deer in accordance with state law-renders improper an action the City Council would otherwise have been empowered to take.
However, neither the Home Rule Statute's text nor any Kentucky case appears to support such a proposition. Indeed, in the constitutional-law context, "[c]ourt[s] will not strike down an otherwise constitutional [enactment] on the basis of an alleged illicit motive." City of Erie v. Pap's A.M., 529 U.S. 277, 292, 120 S.Ct. 1382, 146 L.Ed.2d 265 (O'Connor, J., for a four-Justice plurality) (upholding municipal ordinance against First Amendment challenge and rejecting argument that "that the city council . . . had an illicit motive in enacting the ordinance"). We therefore hold that the Bow-and-Arrow Ordinance is not preempted.
Sheffield raises a similar "comprehensive scheme" preemption argument against the Field-Dressing Ordinance, which requires anyone who "field dresses" (i.e., "remov[es] blood and internal organs from [the] carcass" of) any "animal killed in conjunction with [the Bow-and-Arrow Ordinance]" to "containerize and remove all blood and internal organs from within the City," and which prohibits the "bur[ial], burn[ing], or other[] dispos[al]" of such blood and organs within the City. Sheffield argues that this provision's subject matter places it squarely within the ostensibly state-preempted field of hunting. We are not convinced.
First, we note that while "field dressing" is certainly a concept associated with the hunt, it is not technically a part of "hunting" proper—i.e., "[t]he action or practice of chasing game or other wild animals, either for profit or sport; the chase. . . ." Oxford English Dictionary Online (2d ed.1989); accord Webster's Third New Int'l Dictionary Unabridged (1981) at 1103
Furthermore, that the act of field dressing occurs subsequent to the kill has special significance in light of the common law of wild animals. Such animals "in a state of freedom" (i.e., animals ferae naturae) are owned by "the state in its sovereign capacity as the representative and for the benefit of all its people in common," and "[u]pon this fact of public ownership rests, to a large extent, the governmental power of regulation of fishing and hunting. . . ." 35 Am. Jur.2d Fish and Game § 1 (quoted in 1983 Ky. Op. Att'y Gen. 2-65, 1983 WL 166304, at *2 (Feb. 7, 1983)). However, once a wild animal is "taken and reduced to possession," the property right in the carcass generally leaves the state and vests in the possessor. Ibid.; see also Pierson v. Post, 3 Cai. R. 175 (N.Y.Sup.Ct. 1805). At this point, the once—"paramount state concern" with that animal's welfare has clearly waned. Do, 674 S.W.2d at 521.
Finally, just as the Kentucky courts have traditionally viewed municipalities as possessing the power to regulate the discharge of weapons within their boundaries, the courts have also viewed municipalities as empowered to take local public health and sanitation measures. See Do, 674 S.W.2d at 521-22 (noting that "[t]here is no broader field of [local] police power than that of public health" and that "Kentucky cases recognize the theory of concurrent [local] authority in [the] area[] of . . . public health"). Perhaps the paradigmatic local public-health measures are those regulating waste disposal. See Valley Vista, 13 Cal.Rptr.3d at 438 (noting that "local agencies through their traditional police power have [historically] played the dominant role in local sanitation matters . . . [such as] waste disposal."). It is beyond dispute that the sanitary disposal of "blood and internal organs" falls within this core area of local concern. If the General Assembly in enacting its wildlife code intended to implicitly preempt municipalities' traditional authority to dictate local sanitation measures tangentially related to wildlife, we believe that it would have said so.
Accordingly, we hold that the Field-Dressing Ordinance is not preempted by Chapter 150.
We reach a different outcome with respect to the Deer-Feeding Ordinance. Sheffield correctly points out that the Ordinance's ban on "knowingly, purposely or intentionally feed[ing] deer" on "any public or private property" within the City of Fort Thomas directly conflicts with 301 Ky. Admin. Regs. 2:015, entitled "Recreational Feeding of Wildlife," which provides:
Id. § 2 (emphasis added). The Ordinance clearly "prohibits conduct which is [explicitly] permitted by" the regulation—the knowing, purposeful, or intentional feeding of deer within the curtilage of the home. Louisville & Nashville R.R. Co., 488 S.W.2d at 330.
Defendants raise two arguments against preemption. First, they assert that, despite the administrative regulation's facial applicability to all "[w]ildlife," 301 Ky. Admin. Regs. 2:015 was actually intended to apply solely (or primarily) to wild turkeys, not deer. In support of this contention, they cite the Regulatory Impact Analysis and Tiering Statement prepared by the DFWR prior to the regulation's enactment.
And in any event, regardless of which animals the feeding ban was intended to protect, the specific provision permitting feeding within the curtilage of the home was clearly not intended for the benefit of the animals (which would presumably be best served by an absolute ban on human interference). Rather, the telltale word "curtilage" demonstrates that this particular provision in the regulation was intended to guarantee the domestic interests of property owners. See Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (describing the privileged constitutional status of the curtilage, i.e., "the area to which extends the intimate activity associated with the `sanctity of a man's home and the privacies of life'") (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).
Defendants also argue that even if the Deer-Feeding Ordinance is in direct conflict with Ky. Admin. Regs. 2:015, administrative regulations, as opposed to statutes, have no preemptive force. The district court accepted this argument, noting that while the Home Rule Statute "specifically prohibits a municipality from enacting ordinances that conflict with constitutional or statutory provisions, . . . [it] is silent regarding a municipality's authority to act in the face of a conflicting administrative regulation." Kelly, 610 F.Supp.2d at 778 (citing Ky.Rev.Stat. § 82.082). Relying on the canon that "a court may not insert language to arrive at a meaning different
While the district court was quite possibly correct in its reading of the Home Rule Statute, we believe the district court erred by treating the Home Rule Statute as the beginning and end of the preemption question, rather than further considering the question in light of the common law of municipal-state relations. Viewing the question from this broader perspective, we are satisfied that the Kentucky Supreme Court would hold that state regulations have the same preemptive force as statutes.
The relative powers of municipal and state governments under American common law were authoritatively described over 140 years ago by the preeminent local government-law theorist (and Chief Justice of the Iowa Supreme Court) John Forrest Dillon:
City of Clinton v. Cedar Rapids & Mo. River R.R. Co., 24 Iowa 455 (1868). Dillon observed that "[t]his plenary power on the part of the legislature over public corporations. . . is a doctrine so well settled that it is unnecessary to refer to more than a few cases asserting it." Ibid. As a result of municipalities' lack of "any inherent right of local self-government," a city generally had no power to pass a given ordinance without express permission from the legislature to do so (a principle that came to be known as "Dillon's Rule"). See 1 J. Dillon, Municipal Corporations §§ 98, 237 at 154, 448-49 (5th ed.1911) (quoted in Note, Municipal Home Rule for Kentucky?, 54 Ky. L.J. 757 (1965-66)); accord City of Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 284 (Ky.1976).
It also followed directly from the status of municipalities as mere "tenants at will of the legislature," exercising their authority by legislative grace alone, that any municipal act in conflict with the legislature's superior enactments was null and void. See Boyle v. Campbell, 450 S.W.2d 265, 268 (Ky.1970) ("An ordinance in conflict with a state law . . . is universally held to be invalid."); March v. Commonwealth, 51 Ky. 25, 12 B. Mon. 25 (1851) ("A power vested by the Legislature in a city corporation. . . can not be considered as imparting by implication a power to repeal the laws of the State, or supersede them by any of its ordinances."). It was even stated that "municipal authorities . . . cannot adopt ordinances which infringe the spirit of a state law or are repugnant to the general policy of the state." Arnold v. Commonwealth at Instance City of Somerset, 309 Ky. 620, 218 S.W.2d 661, 662 (1949) (quoting 37 Am.Jur. Municipal Corporations § 165) (emphases added); accord 62 C.J. S. Municipal Corporations § 140 ("Municipal regulations . . . should not be repugnant to the established or public policy of the state.").
Because these common-law principles of municipal-state relations were fleshed out well before the rise of the modern administrative-regulatory state in the New Deal era, see William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523, 540-41 (1992), Dillon's canonical treatment of the law of city-state relations does not specifically address conflicts
Indeed, the Kentucky Supreme Court has observed in a different context that "[a]dministrative regulations properly adopted and filed have the force and effect of law, . . . and . . . have the same effect as statutes . . . enacted directly by the legislative body from which the administrative agency derives its authority." Rietze v. Williams, 458 S.W.2d 613, 617 (Ky.1970) (holding that rule that "one injured by a violation of a statute may recover from a defendant such damages as he has sustained by reason of [that] violation" also applies to violation of administrative regulation); see also City of Owensboro v. Bd. of Trustees, City of Owensboro Employees Pension Fund, 301 Ky. 113, 190 S.W.2d 1005, 1008 (1945) ("Any law directly passed by the Legislature of a state, and any enactment to which a state gives the force of law, is [treated as] a `statute of the state.'" (quoting Fed. Trust Co. v. E. Hartford Fire Dist., 283 F. 95, 96 (2d Cir.1922))).
Treatises and other secondary authorities appear to be in agreement that state regulations have preemptive force. See 5 McQuillin, The Law of Municipal Corporations § 15:18 (3rd ed. 1978) ("In no event may a city enforce restrictions or regulations which are in conflict with the plain mandate of a legislative enactment or state administrative regulations promulgated pursuant to legislative authority." (emphasis added)); 62 C.J.S. Municipal Corporations § 141 ("Conflicts between regulations promulgated pursuant to properly delegated authority and ordinances are governed by the same principles governing conflicts between statutes and ordinances."); 56 Am.Jur.2d Municipal Corporations § 328 ("A local ordinance . . . may be invalid because it conflicts with a state regulation if the state regulation has the force and effect of law.").
It also bears noting that under judge-made federal-state preemption doctrine, "[f]ederal regulations have no less pre-emptive effect [with respect to state laws] than federal statutes" so long as the regulations are "within the scope of the [agency's] delegated authority." Fidelity
Of course, none of this would matter if Kentucky's Home Rule Statute, which does not mention preemption by administrative regulation, was intended to abrogate the common-law rules of preemption and impose a new, strictly statutory preemption regime. We are convinced, however, that this was not the legislature's intent.
The Home Rule Statute was enacted in 1980 in order to "obviate[] the need for the great number of statutes delegating specific powers which had previously been the only way the General Assembly could delegate powers to cities," and thereby "give cities in Kentucky far greater flexibility and authority to handle their local affairs than they ever had in the past." J. David Morris, Municipal Law, 70 Ky. L.J. 287, 287 (1981-82). The statute does this by granting municipalities a blanket authorization to adopt all non-preempted ordinances. See id. at 293, 296.
While the Home Rule Statute purports to specify when a municipal ordinance will be preempted, the Kentucky Legislative Research Commission, an adjunct body to the state legislature, has opined that "[t]he [preemption] language [in the Home Rule Statute] merely restates the well-established common law in Kentucky on the relationship of local ordinances to state law." Kentucky Legislative Research Commission, Informational Bulletin No. 145: Kentucky Municipal Statutory Law (Sept.2003), available at http://www.lrc.ky. gov/lrcpubs/ib145.pdf (last visited August 20, 2010) (emphasis added). Similarly, a leading scholarly article on the Home Rule Statute explains:
Morris, Municipal Law, 70 Ky. L.J. at 299 (emphases added). This article was written by the Committee Staff Administrator for the Kentucky General Assembly's Standing Committee on Cities shortly after the Home Rule Statute was enacted; see id. at 287 n. *; accordingly, it is perhaps the best window readily available into the contemporaneous intent of the legislature in enacting that statute.
This is consistent with the reality that the Kentucky Supreme Court, even after the Home Rule Statute's enactment, appears to take for granted that agency regulations are capable of preemptive effect. In Lexington Fayette County Food and Beverage Association, a 2004 decision, the Kentucky Supreme Court held that "[a] careful examination of the . . . ordinance
Accordingly, we hold that 301 Ky. Admin. Regs. 2:015 has preemptive force and that the Deer-Feeding Ordinance is preempted insofar as it purports to ban deer-feeding within the curtilage of Fort Thomas homes. However, we do not find the Deer-Feeding Ordinance preempted in its entirety, as it is a legitimate exercise of municipal authority as applied to deer-feeding outside the curtilage of the home. No state statute or regulation is in direct conflict with such a scaled-back prohibition. Nor can it be argued that a ban on deer-feeding outside the curtilage of the home is implicitly preempted by Kentucky's "comprehensive scheme" of wildlife legislation, because Ky. Admin. Regs. 2:015 § 2(1) explicitly recognizes municipalities' authority to prescribe local wildlife-feeding rules not inconsistent with that regulation. Ibid. (stating that wildlife may be fed in public areas "unless otherwise prohibited by . . . municipal ordinance"); see Do, 674 S.W.2d at 521 (reasoning that no preemption exists where "[t]he state statutes indicate a desire for local action in that area").
We therefore sever the preempted applications of the Deer-Feeding Ordinance by construing the phrase "any public or private property" in Fort Thomas Code § 91.51(A) to exclude the curtilage of Fort Thomas homes—i.e., "the area encompassing the grounds immediately surrounding any home or group of homes used in the daily activities of domestic life. . . ." 301 Ky. Admin. Regs. 2:015 § 1(2). Thus construed, the ordinance is valid and remains in force.
Sheffield's remaining claims arise under the Due Process Clause of the United States Constitution and § 2 of the Kentucky
Sheffield argues that the Bow-and-Arrow Ordinance violates or burdens his "fundamental right to be free from bodily harm," because "allowing hunting in the residential area around his home put[s] his personal well-being in danger." Appellant's Br. at 31-32. We disagree. It is settled law that "[a] legislative decision that has an incremental impact on the probability that death will result in any given situation—such as setting the speed limit at 55-miles-per-hour instead of 45— cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander." Martinez v. California, 444 U.S. 277, 281, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). The same is no doubt true for legislative decisions that merely increase the probability of bodily harm, rather than death.
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.1998), which Sheffield cites in support of his argument, is not to the contrary. In that case, we held that three undercover police officers' substantive-due-process rights were violated when an employee of the City of Columbus disseminated sensitive information from their personnel files to members of a violent gang. Id. at 1059. As Sheffield notes, we observed in Kallstrom that a state "may not cause or greatly increase the risk of harm to its citizens [at the hand of private actors] without due process of law through its own affirmative acts." Id. at 1066.
However, because "many state activities have the potential to increase an individual's risk of harm" by private actors, we restricted the application of this so-called "state-created danger" doctrine to scenarios where (1) there is a "special relationship [such as warden-prisoner] between the state and either the [plaintiff] or the private tortfeasor"; or (2) the state's actions cause a "special danger" to the plaintiff, i.e., "place [him] specifically at risk, as distinguished from a risk that affects the public at large." Id. at 1066 (emphases added). Sheffield does not claim any special relationship, and nothing in the record establishes that the Bow-and-Arrow Ordinance places him "specifically at risk," as distinguished from the citizenry of Fort Thomas at large. Accordingly, Sheffield has not established a cognizable infringement of his fundamental rights.
Even "legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause" where it imposes burdens without any "rational basis" for doing so. United States v. Comstock, ___ U.S. ___, ___, 130 S.Ct. 1949, 1966, 176 L.Ed.2d 878 (2010) (Kennedy, J., concurring); see also Craigmiles v. Giles, 312 F.3d 220, 223-24 (6th Cir.2002). However, enactments that do not encroach upon fundamental rights "[are] endowed with a presumption of legislative validity, and the burden is on [the challenger] to show that there is no rational connection" between the enactment and a legitimate government interest. Harrah Ind. Sch. Dist. v. Martin, 440 U.S. 194, 198, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979); see also Craigmiles, 312 F.3d at 223-24.
Sheffield also argues that the Deer-Feeding Ordinance is so vague as to offend the constitutional guarantee of procedural due process. A penal statute or ordinance is unconstitutionally vague where it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." Holder v. Humanitarian Law Project, ___ U.S. ___, ___, 130 S.Ct. 2705, 2718, 177 L.Ed.2d 355 (2010); see also Commonwealth v. Foley, 798 S.W.2d 947, 951 (Ky.1990). However, "perfect clarity and precise guidance have never been required" of a penal statute or ordinance in order to pass constitutional muster, Humanitarian Law Project, 130 S.Ct. at 2719 (quoting United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)), especially where that enactment does not "interfere[] with the right of free speech or of association," ibid. (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).
Sheffield's objection to the language of the Ordinance is that its first paragraph proscribes "knowingly, purposely or intentionally feed[ing] deer," while its second paragraph states that "[a] person shall be deemed to have knowingly, purposely or intentionally fed deer" if, inter alia, he "allows [edible material] to be placed . . . within the reach of deer." Ft. Thomas, Ky.Code § 91.51 (emphasis added). According to Sheffield, the second paragraph specifies behavior with a "lower mens rea requirement" than the first, such that the Ordinance as a whole "fail[s] to establish a clear [overall] level of mental intent. . . ." Appellant's Br. at 28, 30. However, even assuming that the Ordinance prohibits both intentional and negligent conduct, this alone does not make it vague; the Ordinance still "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, 411 F.3d 777, 798 (6th Cir.2005) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).
For the reasons discussed above, the district court's judgment is
Page W., Inc. v. Cmty. Fire Prot. Dist. of St. Louis County, 636 S.W.2d 65, 68 (Mo. 1982); accord Dail v. York County, 259 Va. 577, 528 S.E.2d 447, 451 (2000) ("A local ordinance may be invalid because it conflicts with a state regulation if the state regulation has the force and effect of law." (internal quotation marks omitted)).
