Ronald Calzone v. Josh Hawley ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3650
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Ronald Calzone,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Josh Hawley, in his official capacity as Attorney General for the State of Missouri;
Sandra K. Karsten, in her official capacity as Superintendent of the Missouri State
Highway Patrol; Eric Greitens, in his official capacity as Governor of the State of
Missouri,1
lllllllllllllllllllll Defendants - Appellees.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 6, 2017
Filed: August 7, 2017
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Before COLLOTON and BENTON, Circuit Judges, and GERRARD,2 District
Judge.
1
Attorney General Hawley, Superintendent Karsten, and Governor Greitens are
automatically substituted for their predecessors under Federal Rule of Appellate
Procedure 43(c)(2).
2
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska, sitting by designation.
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COLLOTON, Circuit Judge.
Ronald Calzone sued three state officials to challenge provisions of Missouri
law that authorize roving stops of certain vehicles for inspection without suspicion.
The district court held that the statutes were not unconstitutional on their face. The
court also ruled that Calzone’s as-applied challenge was not adequately pleaded,
because the defendants could not be sued in their official capacities under 42 U.S.C.
§ 1983. We affirm the court’s conclusion that the statutes are not facially
unconstitutional, but we conclude that the as-applied challenge against the
superintendent should have been considered on the merits, so we remand for further
proceedings.
I.
In June 2013, Missouri state highway patrol corporal J.L. Keathley stopped
Calzone while he was driving his dump truck on United States Highway 63 in Phelps
County, Missouri. Keathley asked Calzone if he could inspect the truck, but Calzone
refused. Keathley then explained that Mo. Rev. Stat. § 304.230 authorized him to
stop commercial vehicles and inspect them whether or not he had probable cause.
Keathley warned Calzone that if he did not submit to an inspection, then Keathley
would issue him a citation. Calzone still refused, so Keathley issued him a citation
for failure to submit to a commercial vehicle inspection. The Phelps County
prosecutor later abandoned the action against Calzone.
Calzone then sued the governor of Missouri, the Missouri attorney general, and
the superintendent of the Missouri state highway patrol under 42 U.S.C. § 1983. He
sought a declaratory judgment that Mo. Rev. Stat. § 304.230.1, .2, and .7 are
unconstitutional on their face and as applied to him. He asked for a permanent
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injunction against the enforcement of these provisions, for one dollar in nominal
damages, and for costs and attorney’s fees.
The district court granted summary judgment for the officials on Calzone’s
facial challenge and granted judgment on the pleadings for the officials on the as-
applied challenge. The court concluded that the challenged provisions were not
facially unconstitutional, because they could be applied constitutionally to
participants in the closely regulated commercial trucking industry. The court
concluded that Calzone’s as-applied challenge failed because he could not sue the
governor, the attorney general, or the superintendent under § 1983. The court
reasoned that state officials acting in their official capacities are not “persons” subject
to suit under the statute. We review the district court’s rulings de novo.
II.
A threshold question is whether there is jurisdiction over Calzone’s action
against each of the defendants—the governor, the attorney general, and the
superintendent. Calzone adequately alleges that he was injured by a seizure and is
likely to be injured in the future. But Article III standing to sue each defendant also
requires a showing that each defendant caused his injury and that an order of the court
against each defendant could redress the injury. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992).
Because the defendants are state officials, Calzone also must show that the
action is not barred by state sovereign immunity arising from the Eleventh
Amendment. A suit for injunctive or declaratory relief avoids this immunity if the
official has some connection to the enforcement of the challenged laws. See Ex parte
Young, 209 U.S. 123, 157 (1908). In a case like this one, the two inquiries are
similar: “[W]hen a plaintiff brings a pre-enforcement challenge to the
constitutionality of a particular statutory provision, the causation element of standing
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requires the named defendants to possess authority to enforce the complained-of
provision.” Dig. Recognition Network v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir.
2015) (alteration in original) (quotation omitted).
Calzone plainly has standing to sue the superintendent. For purposes of the
Eleventh Amendment and Ex parte Young, a state official’s requisite connection with
the enforcement of a statute may arise out of “the general law” or be “specially
created by the act itself.” 209 U.S. at 157. Section 304.230.1 specifically authorizes
the superintendent to “promulgate rules and regulations relating to the
implementation of the provisions” of § 304.230, so she is subject to suit on claims for
injunctive and declaratory relief. Her directions that patrol officers should implement
the statute by conducting vehicle inspections cause Calzone’s injury, and an order
directing her to cease and desist would redress the injury.
Calzone’s claims against the governor, on the other hand, do not present a case
or controversy. No provision in Chapter 304 or the statutes defining his executive
authority specifically authorizes the governor to enforce the vehicle inspection
statutes. See Mo. Rev. Stat. § 26.010-.225. The Missouri Constitution confers upon
the governor the duty to “take care that the laws are distributed and faithfully
executed,” Mo. Const. art. IV, § 2, but such a general executive responsibility is an
insufficient connection to the enforcement of a statute to avoid the Eleventh
Amendment. See Fitts v. McGhee, 172 U.S. 516, 530 (1899). For similar reasons,
the governor has not caused any injury to Calzone, and there is no Article III case or
controversy between Calzone and the governor.
The third defendant, the attorney general, has certain law enforcement
authority, but his relationship to vehicle inspections is also tangential. The attorney
general is authorized to aid prosecutors in the discharge of their duties when so
directed by the governor and to sign indictments when so directed by a trial court.
Mo. Rev. Stat. § 27.030. Calzone has pointed to no authority, however, suggesting
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that the attorney general has any role in causing vehicle inspections by the highway
patrol. Calzone seeks to enjoin state officials from seizing him and his vehicle for
inspection pursuant to Chapter 304 of the Revised Statutes. If the superintendent is
enjoined from implementing rules that cause patrol officers to conduct the disputed
seizures, then the seizures will end, and Calzone’s injury will be redressed. Calzone
does not seek to enjoin a statute that subjects him to imminent prosecution by the
attorney general, see Ex parte Young, 209 U.S. at 155-56, but rather to prevent
imminent inspections by officers of the highway patrol at the superintendent’s
direction. There is thus no case or controversy between Calzone and the attorney
general.
For these reasons, Calzone has standing to sue the superintendent, and his
claims against her for injunctive and declaratory relief are not barred by the Eleventh
Amendment. The claims against the governor and the attorney general were properly
dismissed, because there is no case or controversy between Calzone and those
officials.
III.
On the merits, Calzone argues that Mo. Rev. Stat. § 304.230.1, .2, and .7 are
facially unconstitutional, because they authorize roving stops of vehicles even if the
stops are not supported by probable cause. To establish that these statutes are
unconstitutional on their face, Calzone must show that there is no set of
circumstances under which the laws would be valid. United States v. Salerno, 481
U.S. 739, 745 (1987).
The challenged subsections of Mo. Rev. Stat. § 304.230 authorize certain law
enforcement officers to stop and inspect commercial motor vehicles for certain
delineated purposes. Subsection 304.230.1 provides that members of the Missouri
state highway patrol “shall have the authority, with or without probable cause to
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believe that the size or weight is in excess of that permitted by sections 304.170 to
304.230, to require the driver . . . to stop, drive, or otherwise move to a location to
determine compliance with [those] sections.” Subsection 304.230.2 authorizes “any
highway patrol officer . . . to stop any [commercial motor vehicle] upon the public
highway for the purpose of determining whether such vehicle is loaded in excess of
the provisions of sections 304.170 to 304.230.” Subsection 304.230.7 gives the
superintendent of the Missouri state highway patrol the power to “appoint members
of the patrol who are certified under the commercial vehicle safety alliance with the
power” to stop operators in order “to conduct commercial motor vehicle and driver
inspections . . . to determine compliance with commercial vehicle laws, rules, and
regulations.” As relevant, Missouri defines a commercial motor vehicle as “a motor
vehicle designed or regularly used for carrying freight and merchandise.” Mo. Rev.
Stat. § 301.010(7).
In New York v. Burger, 482 U.S. 691 (1987), the Supreme Court held that a
warrantless search of property in certain “closely regulated industries” is
constitutional if three criteria are met: (1) the regulatory scheme advances a
substantial government interest; (2) warrantless inspections are necessary to further
the regulatory scheme; and (3) the rules governing the inspections must be a
constitutionally adequate substitute for a warrant, i.e. the rules must provide notice
that property may be searched for a specific purpose and must limit the discretion of
the inspecting officers. Id. at 702-03.
This court has held that commercial trucking is a closely regulated industry
within the meaning of Burger. United States v. Ruiz, 569 F.3d 355, 356-57 (8th Cir.
2009); United States v. Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir. 2004). Ruiz
applied Burger to uphold an Arkansas statute that authorized warrantless inspections
of commercial trucks. The court determined that “warrantless inspections of
commercial trucks advance a substantial governmental interest and are necessary” to
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further the regulatory scheme. 569 F.3d at 357. The court also concluded that the
statute provides a permissible substitute for a warrant. Id.
A similar analysis shows that the Missouri statutes are constitutional on their
face. Missouri’s definition of “commercial motor vehicle” covers commercial trucks.
Missouri has a substantial interest in ensuring the safety of the motorists on its
highways and in minimizing damage to the highways from overweight vehicles.
Ruiz, 569 F.3d at 357 (citing cases); State v. Rodriguez, 877 S.W.2d 106, 109 (Mo.
1994). Given the transitory nature of commercial trucks, United States v. Fort, 248
F.3d 475, 481 (5th Cir. 2001), and the difficulty of detecting violations of the
regulatory scheme by routine observation, effective enforcement would be nearly
impossible without impromptu, warrantless searches. United States v. Maldonado,
356 F.3d 130, 136 (1st Cir. 2004). The challenged subsections are also a permissible
substitute for a warrant. They provide notice to commercial truck drivers of the
possibility of roadside inspection by a designated law enforcement officer, and they
limit the scope of the officer’s inspections to an examination solely for regulatory
compliance. See Ruiz, 569 F.3d at 357. We therefore conclude that Mo. Rev. Stat.
§ 304.230.1, .2, and .7 can be applied constitutionally to participants in the
commercial trucking industry under Burger, and the provisions are not
unconstitutional on their face.
Calzone also contends that the challenged subsections are unconstitutional as
applied to him, because he is not a member of the commercial trucking industry. The
district court concluded that Calzone could not bring an as-applied claim against the
superintendent, because this official is not a “person” under § 1983. That conclusion
is correct as to Calzone’s claim for damages. A suit for damages against a state
official in his official capacity is a suit against the State, and the State is not a person
under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). But
Calzone can sue the superintendent in her official capacity for declaratory and
injunctive relief, because those claims are treated as an action against the official
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personally and not against the State. See id. at 71 n.10; Ex parte Young, 209 U.S. at
159-60. Therefore, it was error for the court to dismiss Calzone’s as-applied claims
against the superintendent for declaratory and injunctive relief based on the meaning
of “person” under § 1983.
The merits of Calzone’s as-applied challenge were not well developed in the
briefs on appeal, and they are best addressed by the district court in the first instance.
Calzone contends that he is not subject to all of the Federal Motor Carrier Safety
Regulations, 49 C.F.R. pts. 390-97, because his dump truck is a “covered farm
vehicle” under federal law. See 49 C.F.R. § 390.5. The State, at oral argument,
replied that Calzone is indeed involved in the closely regulated commercial trucking
industry, because Missouri law incorporates the federal regulations for trucks of a
certain weight. See Mo. Rev. Stat. § 307.400.1(2), .5. The parties have not
addressed, however, whether Missouri’s incorporation of the federal regulations also
incorporates the exceptions for farm vehicles that are contained within those federal
regulations, or whether Missouri’s own exceptions at § 307.400.1(2) and .5 are
exclusive. Nor have the parties discussed whether a partial exemption from the
federal regulations removes an operator from the realm of the closely regulated
commercial trucking industry. The district court may need to consider these
questions and others to resolve Calzone’s as-applied challenge.
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For the foregoing reasons, we affirm the district court’s dismissal of Calzone’s
facial challenge to Mo. Rev. Stat. § 304.230. We affirm the dismissal of Calzone’s
as-applied claims against the governor and the attorney general and the dismissal of
his claim for damages against the superintendent. We reverse the dismissal of
Calzone’s as-applied claim against the superintendent for declaratory and injunctive
relief and remand for further proceedings.
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