MARK W. BENNETT, District Judge.
TABLE OF CONTENTS I. INTRODUCTION ....................................................... 1011II. FINDINGS OF FACT ................................................... 1012III. CONCLUSIONS OF LAW ................................................. 1016IV. REMEDIES ........................................................... 1021V. CONCLUSION ......................................................... 1022
After a one day bench trial, the court is called upon to decide whether Defendant Sheriff Weber's decision to deny Plaintiffs—father and son—Paul and Alexander Dorr's applications for concealed weapons permits was in retaliation for exercising their First Amendment rights.
Plaintiff Paul Dorr is a husband of 34 years and a father to eleven. He, along with his wife Debra, have provided a stable home, and classroom, to their eleven home-schooled children. The family's residence has long been in Osceola County, Iowa, and, more specifically, the town of Ocheyedan.
Paul's decision to settle in Ocheyedan was, at least in part, a result of his decision to apply his Iowa State University degree in Agriculture Business and Economics to providing agricultural loans to farmers at a local bank. While employed at the bank, Paul earned the trust of the elderly gentleman who owned the bank and was able to acquire an interest in it. Although he and the owner shared similarly conservative views concerning the amount of debt farmers should shoulder, the owner's son had also acquired an interest in the bank and did not share those views. As a result, Paul sold his interest in the bank to the owner's son, and Paul began a career in bank consulting.
Paul's new consulting business provided him with the ability to help banks review their asset quality through a computerized credit analysis program, but he eventually came to the realization that there were others who were in greater need of his help. Paul believed that the debt load he had witnessed in the banking business was putting a strain on families, driving mothers into the workforce, and preventing women from having children. After closing his bank consulting business, Paul refocused his efforts toward protesting the laws that legalize abortion as the head of a pro-life ministry called Rescue the Perishing.
Paul disagreed with the content that was taught in public schools and the inefficient manner in which the content was being taught. Because of these beliefs, Paul began to fight levies and bonds to fund schools, and other activities of the local government, by informing voters of his views on the excess spending by local governments. With time, Paul would, once again, put his entrepreneurial spirit to use by providing these services to groups seeking to defeat levies, bonds, and other spending proposals. His services included distributing flyers, writing letters to the local newspapers, and other consulting support. Although Paul had been providing his opinions through these means as far back as 1990, about abortion and other issues, by 2001, he was getting paid for his advocacy. Following an advertisement in a magazine explaining the services he could provide, his business took off. Paul named his consulting business Copperhead Consulting Services.
Because of Paul's controversial advocacy and occasional possession of large amounts of cash, he decided to apply for a nonprofessional permit to carry a weapon, which under Iowa law amounts to a permit to carry a concealed weapon. From at least the late 1990's to 2005, Paul applied for— and was granted—a concealed weapons permit. However, Paul's July 7, 2007, application for a permit was denied. Defendant Sheriff Weber wrote on Paul's application, as the reason for disapproving the application: "Concern from Public. Don't trust him." See Trial Exhibit 1. The following year, Sheriff Weber denied Alexander's application for a permit and informed Paul that he would deny any further applications from him. See Trial Exhibit 3.
Alexander applied for a permit for generally the same reasons as his father, Paul. He believed that he needed to carry a firearm for his protection, due to past death threats to the family in connection with its pro-life advocacy, and due to the large amounts of cash he carried in relation to the balloon business. Both Alexander and Paul Dorr believed that the denials of their applications for concealed weapons permits, by Sheriff Weber, were the result of their advocacy against county spending.
Sheriff Weber was, in fact, aware of the Dorrs' advocacy in the community and previous convictions and arrests.
Sheriff Weber had also crossed paths with Alexander prior to denying his application for a permit, but only once. In 2006 or 2007, Alexander was handing out flyers for his father, Paul, outside of a manufacturing plant in Sibley. The plant manager had confronted Alexander, asked him to leave, and may have called the Sheriff's
The distributed flyers were part of a broader effort by the Osceola County Taxpayers Association ("OCTA") to inform the public of their goals. The OCTA had engaged Paul, in February of 2007, to provide consulting services in connection with the group's belief that the county budget was too large for such a small rural county. In particular, Paul was to investigate expenditures in relation to the public safety commission and county attorney's office. Paul began his investigation by seeking public records from the O'Brien County Auditor—Paul sent a letter to the auditor's office requesting documents relating to the compensation in the county attorney's office. Although Paul requested that the letter be kept confidential, the contents of the letter were communicated outside of the office.
Paul made a similar request for records from Sheriff Weber, in the spring of 2007, when he requested the compensation and duties of the deputies in the Osceola County Sheriff's Office. Paul was specifically directed, by the OCTA, to look into the 85 percent rule, which Paul believed requires the chief deputy to make 85 percent of the sheriff's salary. Because of this rule, Paul believed that the increased salaries provided to the deputies, as a result of the union contracts, were providing Sheriff Weber with an increased salary. Paul eventually received the sheriff's office's policy and procedure manual, but he was also provided with a large bill for the copies. Paul testified that he was billed for 90 minutes of photocopying, plus ten cents per page, for the manual. Sheriff Weber testified that the manual was over 200 pages and included many tabs that made copying time consuming.
Paul wrote a letter to Sheriff Weber in response to the copying bill. Paul explained that OCTA was his client and was forced to pay the cost of the bill. Although Paul did not dispute the ten cent per page charge, he was critical of the 90 minutes that it took to make the copies, especially considering his knowledge of a $5,000 copier and fax unit that the sheriff's office had purchased in 2005. In addition to criticizing the efficiency of the sheriff's office, he offered to provide his services to the office in order to help it become more efficient—he claimed that his skills as a bank consultant would be helpful in assisting the sheriff's office to become more efficient. Paul ended the letter by writing:
Trial Exhibit 29.
Sheriff Weber, in discussing the offer in this letter with his staff, found that his staff would walk out of the sheriff's office if Sheriff Weber were to let Paul enter the office to do an audit. Sheriff Weber explained that Paul was considered a "nut job" in the sheriff's office. According to Sheriff Weber, the individuals in the sheriff's office thought that he was weird for the same reasons that gave him a reputation for being weird in Osceola County, all of which related to his advocacy. Actually, Sheriff Weber thought that Paul was getting weirder through the years. Sheriff Weber has heard people refer to Paul as a
Sheriff Weber held these beliefs about Paul's activities and reputation when he approved, as Osceola County Sheriff, Paul's applications for concealed weapons permits in 2005 and 2006. Sheriff Weber also knew, in the spring of 2007, that Paul was assisting the OCTA, that the group was challenging the county budget, believed the county was spending too much, was seeking information specifically in relation to the sheriff's office, and wanted the sheriff's office to reduce its spending and salaries. Sheriff Weber makes clear that, what had changed between 2006, when he issued the permit, and 2007, when he did not issue a permit, was Paul's advocacy for the OCTA and the concern he received from the public for Paul's advocacy.
Giving Sheriff Weber more deference than is due his elected status, the court finds that Sheriff Weber denied Paul's application for a concealed weapons permit not because of the content of his First Amendment activity but because it was effective and agitated many members of the local community. Had Paul passed out flyers at 2:00 a.m. in a public park where no one was there to receive them, used a bullhorn deep in the woods where no one could hear him advocate his sometimes unorthodox views, or written letters to the editor in the Washington Post where few, if any, residents of Osceola County would read them, then Sheriff Weber would have granted Paul the permit. Paul was denied a permit precisely because Sheriff Weber believed that his free speech rights offended the majority of voters in Osceola County.
Justice Oliver Wendell Holmes, Jr., explained:
Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting); see also New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008) ("The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference.") (citing Abrams, 250 U.S. at 630, 40 S.Ct. at 22). This marketplace allowing for the free trade of ideas is provided for, more specifically, in the First Amendment to the United States Constitution, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
The United States Supreme Court has explained the contentious disputes that may arise due to exercise of First Amendment rights, especially in regard to religious and political beliefs:
Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). Current United States Supreme Court Justice Samuel Alito, while on the Third Circuit Court of Appeals, recognized that the First Amendment also protects deeply offensive statements:
Saxe v. State College Area School Dist., 240 F.3d 200, 206 (3rd Cir.2001) (citing Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Cantwell, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213).
In this case, both Paul and Alexander Dorr allege that they engaged in activities protected by the First Amendment and that Sheriff Weber retaliated against them, because of the activities, by denying their applications for concealed weapons permits. The Eighth Circuit Court of Appeals requires that plaintiffs asserting a claim of First Amendment retaliation prove: "(1) [that they] engaged in a protected activity, (2) the government official took adverse action against [them] that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity." Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004), cert. denied, 546 U.S. 860, 126 S.Ct. 371, 163 L.Ed.2d 140 (2005) (citing Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir.2002)); see also Lewis v. Jacks, 486 F.3d 1025, 1028 (2007) (citing Revels, 382 F.3d at 876); Zutz v. Nelson, 601 F.3d 842, 848-49 (2010) (citing Lewis, 486 F.3d at 1028).
Both Paul and Alexander Dorr engaged in protected activity, when writing letters to the editor and distributing flyers. The United States Supreme Court has "long recognized that the right to distribute flyers and literature lies at the heart of the liberties guaranteed by the Speech and Press Clauses of the First Amendment." International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 702-703, 112 S.Ct. 2711, 2720, 120 L.Ed.2d 541 (1992) (citing Schneider v. State of New Jersey (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943)). In fact, the Supreme Court has explained that leaflets, or pamphlets, have been "historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in
The court also finds that withholding a concealed weapons permit from an applicant would chill the speech of a person of ordinary firmness. See Revels, 382 F.3d at 876. The court recognizes that, "it would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise." Naucke, 284 F.3d at 928 (citations omitted). However, the nature of a concealed weapons permit convinces the court that an applicant, who presumably seeks the permit in order to carry a pistol or revolver on their person, would reasonably be deterred from exercising their First Amendment rights if it led to a denial of the permit. Denial of the permit would prevent the applicant from carrying a pistol or revolver under the circumstances provided for in the permit—an applicant may be motivated to carry a permit due to the perception that they are more able to defend themselves from an attack or the perception that possessing a weapon may deter an attack—and such a denial leaves the applicant with an unremedied concern for their own safety, or the safety of others. Alternatively, the applicant could decide to carry such a weapon and risk the possibility of criminal prosecution. See IOWA CODE § 724.4.
Lastly, the court considers whether Sheriff Weber's decision to deny the Dorrs' applications for permits "was motivated at least in part by the exercise of the protected activity." Revels, 382 F.3d at 876. "Retaliation need not have been the sole motive, but it must have been a `substantial factor' in those decisions." Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007) (citing Wishnatsky v. Rovner, 433 F.3d 608, 613 (8th Cir.2006)). "Retaliatory motive ... may be proved by circumstantial evidence giving rise to an inference of retaliatory intent." Williams v. City of Carl Junction, Mo., 523 F.3d 841, 843 (8th Cir.2008) (citations omitted).
Here, the Dorrs applied for concealed weapons permits under IOWA CODE § 724.7,
Sheriff Weber has been generally consistent on his reason for denying Paul's applications. In his deposition, which was admitted into evidence, Sheriff Weber was asked what had changed between 2006, the last year that he approved Paul's application for a permit, and 2007, the year Sheriff Weber first disapproved Paul's application for a permit. Sheriff Weber explained:
Trial Exhibit 16. Following this response, Sheriff Weber was asked whether it was "his work with the OCTA that brought him into your public view?" Id. Sheriff Weber replied, "Correct, and people started talking about it saying things like, `Oh, that guy's a nut job. Oh, that guy's whacko.'" Id. At trial, Sheriff Weber provided the same rationale for denying Paul's permit: Paul's involvement with the OCTA and the concern Sheriff Weber received from the public due to his involvement with the OCTA.
Although the court can consider circumstantial evidence when deciding retaliatory
In denying Paul a concealed weapons permit, Sheriff Weber single handedly hijacked the First Amendment and nullified its freedoms and protections. Ironically, Sheriff Weber, sworn to uphold the Constitution, in fact retaliated against a citizen of his county who used this important freedom of speech and association precisely in the manner envisioned by the founding members of our Nation who ratified the Bill of Rights on December 15, 1791. In doing so, this popularly elected Sheriff, who appears to be a fine man and an excellent law enforcement officer, in all other regards, blatantly caved in to public pressure and opinion and, in doing so, severely trampled the Constitution and Paul's First Amendment rights to freedom of speech and association. This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views.
For these reasons, the court finds Paul has proved that Sheriff Weber denied his application for a concealed weapons permit in retaliation for exercising his First Amendment rights to freedom of speech and freedom of association. Therefore, the court, having found Paul proved a claim of First Amendment retaliation, will order Sheriff Weber to reconsider, and approve, Paul's application for a concealed weapons permit.
Alexander also assisted his father in distributing flyers on behalf of the OCTA. Sheriff Weber—who candidly admitted at trial that he denied Paul's application for a permit due to Paul's protected activities with OCTA and the community's reaction to his protected activities—stated that he denied Alexander's permit because he was under 21 years of age. According to Sheriff Weber, persons under 21 years of age are not mature enough to put a firearm in their pants and go downtown. The court finds Sheriff Weber's testimony, concerning his reason for denying Alexander's permit, to be as credible as the rest of his testimony, and that his reasoning in this regard is neither unconstitutional nor unreasonable. The court does not question Alexander's maturity now, as a twenty year old, or when he applied for the permit as an eighteen year old. Nevertheless, the court finds that Sheriff Weber understandably had concerns about providing a concealed weapons permit to an individual under 21 years of age, and the court finds that he denied the application on those grounds and not as a result of First Amendment retaliation.
The Dorrs waived their claims for nominal, compensatory, and punitive damages. See docket no. 50 (Stipulation of the Parties). However, they preserved their claims to declaratory and injunctive relief. See docket no. 34 (Second Amended Complaint). The Dorrs also maintained their request for: "any injunctive relief deemed necessary to ensure rights protected under the United States Constitution as delineated are no longer violated nor will be violated by ... Sheriff Weber...." Id.
The court has found that Sheriff Weber's denial of Paul's application for a concealed weapons permit was a violation of Paul's First Amendment rights. Thus, the court will provide Paul's requested declaratory relief and declare that Sheriff Weber's denial of Paul's application for a concealed weapons permit was unconstitutional retaliation for exercising his First Amendment rights of freedom of speech and freedom of association. The court will also grant injunctive relief by ordering Sheriff Weber to immediately issue Paul a nonprofessional permit to carry a weapon under Chapter 724 of the Iowa Code.
Additionally, the court will grant Paul's request for additional relief "necessary to ensure rights protected under the United States Constitution ... are no longer violated ... by Sheriff Weber...." Docket no. 34. As was discussed in Plaintiffs' Post Trial Memorandum of Law Regarding Remedial Relief (docket no. 57)
The court provides Sheriff Weber with the following guidelines concerning the class that he must complete. First, the class must provide college level instruction on the United States Constitution, including—at least in part—a discussion of the
THEREFORE, the court grants Paul Dorr's request for declaratory relief and declares that Defendant Sheriff Weber's denial of Paul's application for a concealed weapons permit was unconstitutional retaliation for Paul's exercising his First Amendment rights of freedom of speech and freedom of association. The court also grants Paul's request for injunctive relief and orders Sheriff Weber to immediately issue Paul a nonprofessional permit to carry a weapon under Chapter 724 of the Iowa Code. Sheriff Weber is further ordered to enroll in, and successfully complete, a court approved course concerning the United States Constitution, and file proof of completion with this court, as discussed above—proof of completion must be filed with this court by January 1, 2011.
The court finds that Sheriff Weber did not retaliate against Alexander Dorr for exercising his rights under the First Amendment and, accordingly, orders no relief.
The court reminds plaintiffs' counsel that Local Rule 54.1(a) instructs that a motion for an award of attorneys fees must be filed within the time prescribed by Federal Rule of Civil Procedure 54(d)(2)(B), see N.D. Ia. L.R. 54.1(a), which requires that such motions be filed "no later than 14 days after the entry of judgment." Fed. R.Civ.P. 54(d)(2)(B).
The court accepts Paul's claim that he admired the Copperheads due to their alleged support of free speech rights and opposition to bonds, not due to their allegedly favorable view toward slavery, which he disputes. The court finds Paul Dorr to be a much more effective right wing gadfly than an accurate historian. Various perspectives on the history and beliefs of the Copperheads is available online. See, e.g., http://civilwar.bluegrass.net/ HomeFront/copperheads.html; http://www. freerepublic.com/focus/f-news/1473270/posts; http://www.civilwarhome.com/copperheads. htm.
IOWA CODE § 724.4(1) (emphasis added). Having a permit insulates an individual from criminal liability under the appropriate circumstances:
IOWA CODE § 724.4(4)(i).
IOWA CODE § 724.8.