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Federal judge denies Morrisey motion to dismiss challenge of Parking Lot Gun Bill

MORGANTOWN — A federal judge has denied state Attorney General Patrick Morrisey’s motion to dismiss a case brought against him by a coalition of domestic violence shelters challenging the 2018 Parking Lot Gun Bill.

Senior Judge John Copenhaver, in the U.S. District Court for the Southern District of West Virginia, issued his order on Thursday.

Morrisey’s office said they are aware of order and are reviewing it in order to determine their next steps.

Eric Tirschwell, managing director for Everytown Law, a branch of Everytown for Gun Safety, which is representing the shelters along with two Charleston law firms, said in an email exchange, “Under the law in question, private property owners can’t choose to keep guns off their property, no matter what their reasons are. It’s truly extreme, and it directly affects our clients’ ability to protect their staff, residents and visitors.

“We look forward to showing the court how this law tramples the rights of property owners across West
Virginia, including the rights to ask questions and make decisions that directly affect the safety of everyone on their property,” he said.

The plaintiffs, the Elkview-based West Virginia Coalition Against Domestic Violence – its 14 members include the Rape and Domestic Violence Information Center in Morgantown and HOPE Inc. in Fairmont – filed suit in June 2019. Morrisey moved for dismissal in August 2019.

The gun bill, HB 4187, 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 plaintiffs allege the bill harms them because their programs exist to protect victims of domestic violence and to create “safe havens where victims will not be physically endangered or psychologically retraumatized.” The law “impairs the shelters’ ability to safeguard the physical and emotional well-being of their residents and to foster the kind of environment that is so essential to their existence. … [It] inhibits their First Amendment right to associate freely with their clients.”

Seeking dismissal, Morrisey argued that the plaintiffs lack standing and the court has no jurisdiction over the subject matter because since 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.

The judge found Morrisey’s argument insufficient. “The defendant’s statement is not enough to remove

WVCADV members’ legitimate fear that they will be penalized for applying their policies and violating [the code] because there is nothing to suggest that the defendant will not enforce

the statute if a member shelter adheres to its existing policy and a citizen files a complaint.”

Additionally, the judge noted, “The WVCADV alleges a sufficient First Amendment injury

for members that have changed their policies to comply with [the code] because their rights have been chilled.” Some coalition members have had to change their policies to conform with the new law. “Even though the statute has not yet been enforced, the chilling effect in this case is objectively reasonable for members who have changed policies.”

Morrisey also argued that the plaintiffs’ free-speech claim is not germane because they haven’t demonstrated how the prohibition to inquire about guns impairs their mission to end personal and institutional violence.

But the judge accepted the plaintiffs’ reasoning over Morrisey’s. “This lawsuit challenging

the ability to ask whether a firearm is in a domestic violence shelter parking lot area is germane to the stated purpose of the WVCADV to end personal and institutional violence. If this lawsuit were successful, it would further the interests that individual members sought to vindicate in joining the WVCADV by ensuring that members … can implement the policies they believe are best to end violence and create a safe haven for domestic violence victims.”

The judge also agreed with the plaintiffs that the case is ripe for judicial decision because the primary issue is whether the gun bill violates their constitutional rights and they would suffer hardship if the court withholds consideration.

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