3:07CV377-R

3. Defendant John Adams in his official capacity as Commissioner of Kentucky State Police Headquarters is the Kentucky authority charged with issuing Kentucky Concealed Carry Licenses and is located in the Commonwealth of Kentucky.
4. Defendant Col. John Aubrey in his official capacity as Jefferson County Sheriff of the Jefferson County Sheriff Department is located in Jefferson County and is the authority charged with accepting applications for Kentucky Concealed Carry Licenses to be sent to the Kentucky State Police. Jefferson County Sheriff Department is located in Jefferson County and is the local authority that disseminates information and applications for Kentucky Concealed Carry Licenses and is charged with accepting applications to be sent to the Kentucky State Police.
5. This Court has original jurisdiction of this action pursuant to 28 U.S.C. § 1331 because Mr. Say's complaint arises under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
6. Venue is proper in this case pursuant to 28 U.S.C. § 1391(b) as all parties reside in Kentucky, a defendant resides in Jefferson County, and a substantial part of the events from which these claims arise occurred in the Western District of Kentucky.
COMMON ALLEGATIONS OF LAW AND FACT 7. Kentucky's Constitution grants all individuals the right to bear arms in defense of self and authorizes Kentucky's General Assembly to regulate the carrying of concealed deadly weapons. KY CONST. § 1. 8. Kentucky's General Assembly requires Kentuckians to obtain a license in order to legally carry a concealed deadly weapon ("CCDW license"). § 1; KRS 237.110.
2

9. The Jefferson County Sheriff accepts applications from Jefferson County residents for CCDW licenses. http://www.jcsoky.org/ccdw.htm.
10. The Sheriff verifies that each application is accompanied by the required certificate oftraining and the necessary fees. http://www.jcsoky.org/ccdw.htm.
11. As described on the Jefferson County Sheriffs website: "NEW ! As of July 12, 2006, in accordance with House Bill290 and the changes it made to KRS 237.110, anyone applying for a CCDW license or renewal must be a citizen of the United States. Therefore, applicants will need to fill out and sign a Citizenship Affidavit declaring citizenship to the United States, which will be attached to the application." http://www.jcsoky.org/ccdw.htm.
12. The Jefferson County Sheriff forwards only CCDW applications that are accompanied by the requisite training certificate, fees, and affidavit of U.S. citizenship to the Kentucky State Police ("KSP"). http://www.jcsoky.org/ccdw.htm.
13. Actions taken by the Jefferson County Sheriff Department constitute the Department's official policy.
14. Prior to a recent amendment, the KSP was required to issue a CCDW license to any applicant who:
a. Was at least twenty-one years old; b. Was eligible to purchase, receive or possess firearms or ammunition under
applicable federal and state law; c. Had been resident in Kentucky or served on active duty in Kentucky for the
six months immediately preceding the filing ofthe application; d. Had not been committed or convicted for the abuse of a controlled substance
in the three years immediately preceding the filing of the application;
3

e. Had not been committed or twice convicted for the use of alcohol in the three years immediately preceding the filing of the application; and
f. Had demonstrated competence with a firearm. KRS 237.110(2) 2005 (superseded).
15. On April 22, 2006, Kentucky's General Assembly amended KRS 237.110 with additional prerequisites for the issuance of a CCDW license. 2006 KY Act No. 240; Bill Tracking KY K.B. 290.
16. Subsequent to Kentucky's 2006 amendment, a successful applicant for a CCDW license must meet all of the requirements as described in~ 13 above and:
g. Must be a citizen of the United States of America; h. Must not be reported as in arrearage of child support or in defiance of a
subpoena or warrant relating to child support or paternity proceedings; and 1. Must not have been convicted of certain criminal violations in the three years
immediately preceding the filing of the application. KRS 237.110(4) 2006 (emphasis added).
17. Pursuant to a background check, KSP issues CCDW licenses to successful applicants who meet all of these prerequisites within 90 days.
18. Mr. Say is a British national who has been a legal resident in Kentucky from April 1987 to August 1990, and from 1995 to the present.
19. On or about July 6, 2006, Mr. Say contacted the Jefferson County Sheriff department in order to secure a CCDW license.
20. Although the citizenship requirement was not to go into effect until July 12, 2006, Mr. Say was told by a representative of the Jefferson County Sheriff that he could not complete
4

the requirements before that date and that his application would not be approved due to the citizenship requirement.
21. Mr. Say was told by the representative that only a United States citizen was eligible to obtain a CCDW license.
22. That representative directed Mr. Say to the recent amendment in Kentucky's statute that added the requirement of U.S. citizenship to Kentucky's CCDW law and told Mr. Say not to waste his time and money applying for a license.
23. Mr. Say has incurred monetary damages as a result of his unsuccessful attempts to secure a CCDW license and the Jefferson County Sheriffs refusal to forward Mr. Say's application for a CCDW license.
24. Mr. Say was directed by the Sheriffs representative to the KSP for any further enqumes.
25. A representative of KSP assured Mr. Say that the statute requmng U.S. citizenship would be enforced and would prevent Mr. Say from successfully obtaining a CCDW license.
26. The KSP representative informed Mr. Say that even if he completed the
requirements before the July 1ih amendment implementation date, there was no guarantee that
the permit would not be revoked subsequent to that date, and that even if it was not revoked, it would not be renewed upon expiration.
27. Mr. Say was dissuaded by that representative from applying for a CCDW license as he would be in effect throwing away the $60 application fee.
28. Over the past few years, Mr. Say has purchased several firearms and has never had any problems with the FBI background check and approval process.
5

29. Other than the citizenship requirement, there is no unfulfilled requirement that would prevent Mr. Say from obtaining a CCDW license.
30. Kentucky's General Assembly stipulates the necessity for statewide uniform standards for Issumg licenses to carry concealed firearms and requires the law governmg concealed carry licenses to be "liberally construed to carry out the constitutional right to bear arms for self-defense." KRS 237 (-l-6) (19), 2006 KY Act No. 240 Sec 1 (emphasis added).
31. Kentucky may not "deny to any person within its jurisdiction the equal protection ofthe laws." U.S. CONT. amend. XIV§ 1.
32. Kentucky may not deny to any person constitutional rights under color of law. 33. The federal government has plenary power to control the entrance of foreigners into the United States. 34. There are no federal laws requiring United States citizenship as a prerequisite for an application for or the issuance of a license to purchase, carry, transport, or carry concealed a deadly weapon. 35. In light of Mr. Say's inability to obtain a CCDW license, he has suffered irreparable harm, and there is currently no adequate remedy at law that can redress this harm.
VIOLATION OF EQUAL PROTECTION OF THE LAW 36. KRS 237.110(4), as amended to include the citizenship requirement discriminates based on alienage. 37. The citizenship requirement contained in the amended statute is unconstitutional as a denial of equal protection of the laws and is in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
6

38. A controversy exists as to whether the recent amendment to Kentucky's statute that added the requirement of United States citizenship to Kentucky's CCDW law is constitutional.
39. A declaration from this Court would settle this controversy. 40. A declaration would also serve a useful purpose in clarifying the legal issues in dispute. 41. Mr. Say seeks a declaration that KRS 23 7.110, as amended, is unconstitutional. 42. In the absence of an injunction, the amended statute requiring United States citizenship would continue to be enforced and would prevent Mr. Say from successfully obtaining a CCDW license. 43. Mr. Say will continue to suffer irreparable injury if the Court does not issue an injunction. 44. There is no adequate remedy at law because only an injunction would allow Mr. Say the opportunity to apply for and subsequently secure a CCDW license. WHEREFORE, Plaintiff Alexander Say requests that the Court: A. Declare that the United States citizenship requirement contained in the KRS 237.110(4), as amended, denies Mr. Say equal protection ofthe laws; B. Enter a declaratory judgment declaring the citizenship requirement of KRS 237.110 unconstitutional, and striking such requirement from the statute; C. Grant Mr. Say any and all necessary injunctive relief so as to enable Mr. Say to apply for a CCDW license, and so that Mr. Say's application will be determined, processed, and issued without regard to his citizenship;
7

D. Award Mr. Say monetary damages against the Jefferson County Sheriff in an amount to be proven at trial;
E. Grant Mr. Say costs and reasonable attorney's fees pursuant to 42 U.S.C. § 1988; and
F. Grant any further relief, in law or equity, as the Court deems just and appropriate.

Respectfully submitted,

OF COUNSEL:
David A. Friedman William E. Sharp ACLU ofKentucky 315 Guthrie Street, Suite 300 Louisville, Kentucky 40202 (502) 589-1001 dfriedman@ffgklaw.com sharp@aclu-ky.org
Patricia A. Foster Ali Razzaghi FROST BROWN TODD LLC 2200 PNC Center 201 East Fifth Street Cincinnati, OH 45202-4182 (513) 651-6730 (513) 651-6981 (facsimile) pfoster@fbtlaw.com arazzaghi@fbtlaw.com

/s/ Jack B. Harrison Jack B. Harrison (88641) FROST BROWN TODD LLC 2200 PNC Center 201 E. Fifth Street Cincinnati, Ohio 45202 (513) 651-6800 Fax: (513) 651-6981 Jharrison@fbtlaw.com Attorney for Alexander Say, and Cooperating Attorney for ACLU of Kentucky

8

VERIFICATION OF COMPLAINT

STATE OF KENTUCKY )

COUNTY OF JEFFERSON )

SS:

I, Alexander M. Say, being duly cautioned and sworn, state that I am the Plaintiff in this

action. To the extent I have personal knowledge of the matters alleged in the Complaint, I verify

that the information is true and accurate to the best of my knowledge and belief.

,2..3 .:;_o I 0
I

9

 
 Case 3:07-cv-00377-TBR Document 4 Filed 07/20/07 Page 1 of 3 PageID #: 34

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

ALEXANDERM. SAY,

Civil Action No. 3:07CV377-R

Plaintiff,

v.

JOHN ADAMS, et aL.

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Defendants.

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Pursuant to F.RC.P. 65(a), Plaintiff Alexander M. Say respectfully moves this Court for

a preliminary injunction enjoining Defendants John Adams in his offcial capacity as

Commissioner of Kentucky State Police Headquarters, Col. John Aubrey in his offcial capacity

as Jefferson County Sheriff, and Jefferson County Sheriff

Department from enforcing the

provision of Kentucky's statute, KRS 237. i i O( 4)(b), which imposes an unconstitutional

infringement ofMr. Say's rights under the Fourteenth Amendment of

the United States

Constitution.

As more fully discussed in a separately fied Memorandum in Support, Defendant's

enforcement of this provision discriminates unconstitutionally on the basis of alienage in a way

not authorized or contemplated by Congress. This motion is made on the grounds that Mr. Say is

likely to succeed on the merits, Mr. Say will suffer irreparable injury unless the requested

injunction is issued, the requested injunction will not harm others, and the public interest will be

served by halting Kentucky's unlawful discrimination on the basis of alienage. A proposed

i

Case 3:07-cv-00377-TBR Document 4 Filed 07/20/07 Page 2 of 3 PageID #: 35

Order granting Plaintiff s Motion for Preliminary Injunction is attached hereto for the Court's convenience.

OF COUNSEL:

David A. Friedman

William E. Sharp

ACLU of

Kentucky

315 Guthrie Street, Suite 300

Louisville, Kentucky 40202

(502) 589-1001 dfriedman(fffgklaw. com
sharp(fac1u-ky.org

Patricia A. Foster Ali Razzaghi FROST BROWN TODD LLC 2200 PNC Center 201 East Fifth Street Cincinnati, OH 45202-4182
(513) 651-6730 (513) 651-6981 (facsimile) pfoster(ffbtlaw. com arazzaghi(ffbtlaw. com

Respectfully submitted,
Isl Jack B. Harrison Jack B. Harrison (88641) FROST BROWN TODD LLC 2200 PNC Center 201 E. Fifth Street Cincinnati, Ohio 45202 (513) 651-6800 Fax: (513) 651-6981
J-ll¡lu:i~QllCifullaw,_ç_Qm
Attorney for Alexander Say, and Cooperating Attorney for ACLU of Kentucky

2

Case 3:07-cv-00377-TBR Document 4 Filed 07/20/07 Page 3 of 3 PageID #: 36

CERTIFICA TE OF SERVICE

This is to certify that a true copy of

the foregoing has been duly served by ordinary u.s.

Mail to the person(s) listed below on this 20th day of July, 2007.

John Adams
Kentucky State Police Headquarters 919 Versailles Road Frankfort, KY 40601

Col. John Aubrey

Jefferson County Sheriff

Department

531 Court Place, Suite 604

Louisville, KY 40202

Isl Jack B. Harrison Counsel for Alexander Say

CINLibrary 0110802.0543606 1714293v.2

3

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION CASE NO. 3:07-CV-377-R

ALEXANDER M. SAY,

PLAINTIFF

v.

JOHN ADAMS, ET AL

DEFENDANTS

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff Alexander Say’s Motion for Preliminary

Injunction (Docket #4). Defendant has responded (Docket #8). Plaintiff has replied (Docket #9).

The Attorney General of Kentucky was notified of this action (Docket #18), and the Court

certified to him that there is a constitutional challenge to a state statute (Docket #19). The

Attorney General notified the Court that he does not intend to intervene in this action (Docket

#20). This matter is now ripe for adjudication. For the reasons that follow, Plaintiff’s Motion

for Preliminary Injunction is GRANTED.

BACKGROUND

Plaintiff Alexander Say, a British National, is lawfully admitted into the United States for

permanent residence. Plaintiff has been a resident of the Commonwealth of Kentucky without

interruption since 1995. At the time the briefs were filed Defendant John Adams was the

Commissioner of the Kentucky State Police, and Defendant John Aubrey was the Sheriff of

Jefferson County.

Kentucky law authorizes the State Police to issue and renew licenses to carry a concealed

deadly weapon (“CCDW license”). K.R.S. § 237.110(1). Applications for a CCDW license are

obtained from the office of the sheriff in the county in which the applicant resides. K.R.S. §

237.110(7). Under Kentucky law, only United States citizens are eligible to receive a CCDW license. K.R.S. § 237.110(4)(b).
Prior to July 12, 2006, Kentucky did not require United States citizenship as a prerequisite for obtaining a CCDW license. Defendants state that the purpose behind the citizenship requirement was to gain federal approval to allow a CCDW license holder to purchase a firearm without undergoing a telephone inquiry with the National Instant Criminal Background Check System (“NICS”). Defendants submit, upon information and belief, that the NICS background check, when conducted for a non-citizen, requires an “Illegal Alien Query” (“IAQ”) conducted through the United States Immigration and Customs Enforcement to determine the alien’s legal status within the United States. The Kentucky State Police currently conducts a NICS check before granting a CCDW licence, but does not conduct an IAQ check.
On July 6, 2006, Plaintiff attempted to apply for a CCDW license. A member of the Jefferson County Sheriff’s Department told Plaintiff that he was not eligible for a CCDW license due to the change in Kentucky law. Plaintiff claims that other than the citizenship requirement, he fulfills all other statutory requirements to obtain a CCDW license.
Plaintiff argues that the provision limiting CCDW permits to U.S. citizens violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiff requests a preliminary injunction under F.R.C.P. 65(a) enjoining Defendants in their official capacities from enforcing the provision limiting the issuance of CCDW licenses to United States citizens.
STANDARD In determining whether to issue a preliminary injunction, the court must consider: “(1) whether the movant has a ‘strong’ likelihood of success on the merits; (2) whether the movant
2

would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.” Summit County Democratic Cent. & Executive Comm. v. Blackwell, 388 F.3d 547, 550-51 (6th Cir. 2004) (quoting Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)). “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
DISCUSSION I. Likelihood of Success
Plaintiff argues that K.R.S. § 237.110(4)(b), which prevents non-citizens from obtaining a CCDW permit, violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. Ordinarily, a state law classification that “neither burdens a fundamental right nor targets a suspect class” will be upheld if the classification “bears a rational relation to some legitimate end.” Vacco v. Quill, 521 U.S. 793, 799 (1997). “The general rule gives way, however, when a statute classifies by race, alienage, or national origin.” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
When a state law targets a suspect class, the classification is subject to “strict scrutiny.” The Supreme Court has held that “classifications by a State that are based on alienage are ‘inherently suspect and subject to close judicial scrutiny.” Nyquist v. Mauclet, 432 U.S. 1, 7 (1977) (citing Graham v. Richardson, 403 U.S. 365, 372 (1971).
While aliens are a suspect class, distinctions made between different classes of aliens are not subject to strict scrutiny. For example, “classification . . . based on the legality of the alien’s
3

presence in the country under federal law (lawful permanent resident aliens vs. illegal aliens) and/or the length of time the federal government has authorized the alien to stay in the country (permanent vs. temporary)” is not a distinction that burdens a suspect class. League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 531 (6th Cir. 2007). However, K.R.S. § 237.110(4)(b) clearly makes a distinction between “citizens” and “aliens,” and not merely subclasses of aliens.
Under Supreme Court and Sixth Circuit precedent, “lawful permanent residents are the only subclass of aliens who have been treated as a suspect class.” Bredesen, 500 F.3d. at 533. The citizenship provision allows citizens to obtain a CCDW license, and prohibits all aliens, including lawful permanent residents, from obtaining a license. On the basis of precedent binding on the Court, Plaintiff, as a lawful permanent resident of the United States, is entitled to the special protection afforded by strict scrutiny review.
“In undertaking this scrutiny, ‘the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.’” Nyquist v. Mauclet, 432 U.S. 1, 7 (1977) (quoting Examining Board v. Flores de Otero, 426 U.S. 572, 605 (1976)). In other words, classifications subject to strict scrutiny “are constitutional only if they are narrowly tailored to further compelling governmental interest.” Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Additionally, under strict scrutiny, the defendant bears the burden to justify the suspect classification. Middleton v. City of Flint, 92 F.3d 396, 404 (6th Cir. 1996).
Defendants state that the purpose behind the citizenship provision was to facilitate the
4

Kentucky State Police in conducting a background check that could replace the NICS background check conducted when a firearm is purchased. Federally licensed firearms dealers are required to perform the instant NICS check before transferring any firearm. 18 U.S.C. § 922(t)(1). There is an exception to the NICS background check requirement when the purchaser presents a permit issued by the state that meets certain federal requirements. 18 U.S.C. § 922(t)(3).
Defendants have not satisfied their burden to show why this is a substantial state interest. The Court cannot find that a state’s interest in substituting a state background check for a federal background check is compelling enough to justify creating a classification that discriminates against a suspect class.
Furthermore, the citizenship provision is not narrowly tailored to achieve this governmental interest. A blanket prohibition discriminating against aliens is not precisely draw to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals. As discussed below, if the Kentucky State Police undertakes some administrative burden, it is possible to allow permanent resident aliens to obtain a CCDW license, and still meet the requirements necessary to allow CCDW holders to avoid the NICS inquiry at the time of purchase.
On the basis of the evidence and argument currently of record, the Court finds that, for the purposes of this motion, K.R.S. § 237.110(4)(b) discriminates against a suspect class, and is subject to strict judicial scrutiny. Applying strict scrutiny, the Court believes that the basis for the distinction between citizens and aliens submitted to the Court is not a compelling state interest, nor is the blanket prohibition narrowly tailored to achieve that end. Therefore, the Court finds
5

that Plaintiff has established a strong likelihood of success on the merits. II. Irreparable Injury
“Courts have . . . held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 578 (6th Cir. 2002). “[I]t is well-settled that ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)). Other courts have found irreparable injury in other constitutional violations. See Covinno v. Patrissi, 967 F.2d 73,77 (2nd Cir. 1992) (violation of the Fourth Amendment); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (violation of the right to privacy). Therefore, the Court finds that the violation of the Equal Protection Clause qualifies as an irreparable injury, especially when consider in light of Plaintiff’s likelihood of success on the merits. III. Harm to Others
The Court must also examine any substantial harm to others that would occur if a preliminary injunction is granted. If the Kentucky State Police issues a CCDW license to Plaintiff without conducting an IAQ check, Defendants believe the use of a CCDW license as a replacement for the NICS background check will be placed in jeopardy. This would mean that CCDW license holders may have to undergo a telephonic NICS criminal history check when purchasing a firearm.
Additionally, the Kentucky State Police could also be injured by the granting of a temporary injunction. Protecting the ability of current CCDW license holders to use their license
6

in place of a telephonic NICS inquiry would impose additional administrative burdens on the Kentucky State Police. It may be required to conduct a manual case-by-case background check on alien CCDW applicants. Additionally, Defendants state that the Kentucky State Police will have to update its electronic database software, amend its forms, and change its record check procedures.
While the granting of the injunction will potentially harm the Kentucky State Police by increasing its administrative burden, and potentially harm current CCDW licence holders by requiring them to undergo a NICS background check when purchasing firearms, this harm is outweighed by Plaintiff’s likelihood of success on the merits and the harm to Plaintiff if an injunction is not granted. Under the facts before the Court, any harm to others caused by the granting of a preliminary injunction is not substantial enough to justify the violation of Plaintiff’s constitutional rights. IV. The Public Interest
Defendants assert that the public interest in immediately granting the injunction is negligible at best. However, Plaintiff is asserting a violation of the Equal Protection Clause. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994). V. Balancing of Factors
Upon examination of all four factors, the Court finds that a temporary injunction is appropriate in this case. Case law establishes that lawful permanent residents are a suspect class, and therefore entitled to the special protection afforded by strict scrutiny. While both the Kentucky State Police and current CCDW license holders would be affected by the injunction,
7

the potential harm in granting the preliminary injunction is not substantial enough to outweigh the other relevant factors. Plaintiff has demonstrated a strong likelihood of success on the merits of his equal protection claim. Additionally, Plaintiff has made a strong showing that his constitutional rights have been violated, which is considered to be an irreparable harm. Finally, it is in the public interest to prevent the violation of an individual’s constitutional rights.
CONCLUSION For the above reasons, Plaintiff’s Motion for Preliminary Injunction is GRANTED. An appropriate order shall issue.
March 13, 2008
8

 
 Case 3:07-cv-00377-TBR Document 23 Filed 04/15/08 Page 1 of 2 PageID #: 112

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CIVIL ACTION NO. 3:07CV377-R

Electronically Filed

____________________________________

ALEXANDER M. SAY, et al.

)

)

Plaintiff,

)

)

vs.

)

)

JOHN ADAMS, et al.

)

)

Defendants.

)

____________________________________)

** ** ** ** ** MOTION TO DISMISS
** ** ** ** **

Defendant John Adams, former Commissioner of the Kentucky State Police, respectfully

moves to dism iss this action as m oot. As grounds for this m otion, Adams states that the

Department of State Police fully intends to comply with the preliminary injunction entered by the

Court on March 14, 2008, and further states that KRS 237.110 has now been am ended to delete

the citizenship requirement being challenged in this action by Pl aintiff. A copy of House Bill

639 and a copy of its vote history are attached as Exhibits 1 and 2. Review of these Exhibits

establishes that the Governor of the Comm onwealth signed House Bill 639 into law on April 14,

2008.

While the amended version of KRS 237.110 will not officially go into effect until Ju ly

2008, as stated above, the Department of State Police represents to the Court that it will continue

to comply with the Court' s preliminary injunction until the effective date of the amendments to

KRS 237.110. This action, therefore, should be dismissed as moot.

Case 3:07-cv-00377-TBR Document 23 Filed 04/15/08 Page 2 of 2 PageID #: 113
Respectfully submitted, s/ Roger G. Wright_____________ Roger G. Wright Justice & Public Safety Cabinet Office of Legal Services c/o of Kentucky State Police 919 Versailles Road Frankfort, Kentucky, 40601 502-695-6345 (Fax) 502-573-1636 rogerg.wright@ky.gov, and Stephen D. Lynn Justice & Public Safety Cabinet Office of Legal Services c/o Department of Cri minal Justice Training Funderburk Building 521 Lancaster Avenue Richmond, Kentucky 40475-3102 (859) 622-3073 (Fax) (859) 622-5027 steve.lynn@ky.gov
CERTIFICATE OF SERVICE I hereby certify that on April 15, 2008, I electroni cally filed the foregoing with the Clerk of the Court by using the CM/ECF system , which will send a notice of electronic filing to the following: Jack B. Harrison, David A. Friedman, N. Scott Lilly and William E. Sharp.
s/Roger G. Wright________________ Counsel for Commissioner John (Jack) Adams
2

 
 Case 3:07-cv-00377-TBR Document 30 Filed 06/25/08 Page 1 of 2 PageID #: 161

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

ALEXANDER M. SAY,

)

)

Plaintiff

)

)

v.

)

)

JOHN ADAMS, et al.

)

)

Defendants

)

____________________________________)

CIVIL ACTION NO. 3:07CV-377-R Electronically filed

PROPOSED ORDER

Joint motion having been made and the Court having been sufficiently advised,

IT IS ORDERED:

1. The Court’s preliminary injunction, entered on March 14, 2008, is hereby

converted into a permanent injunction. This resolves the merits of this case.

2. Defendant John Adams’ motion to dismiss the case as moot is hereby

denied as moot.

3. Plaintiff shall file his motion seeking an award of statutory attorneys’ fees

and costs within thirty (30) days after entry of this order. Defendant shall respond, and

plaintiff may reply, as provided by local rules.

4. If the amount of the Court’s award for work performed before June 2,

2008, equals or exceeds the amount contained in Defendant’s offer of judgment, Plaintiff

will be entitled to the full amount that the Court awards. If, however, the amount of the

Court’s award for work performed before June 2, 2008, is less than the amount contained

in Defendant’s offer of judgment, Defendant will be entitled to the relief and remedy

afforded by Fed. R. Civ. P. 68.

Case 3:07-cv-00377-TBR Document 30 Filed 06/25/08 Page 2 of 2 PageID #: 162 5. Neither side waives its right of appeal from the Court’s order awarding
attorneys’ fees and costs under 42 U.S.C. § 1988.
June 24, 2008

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION CASE NO.: 3:07-CV-377-R

ALEXANDER M. SAY

PLAINTIFF

v.

JOHN ADAMS, et al.

DEFENDANTS

MEMORANDUM OPINION

This matter is before the Court upon Plaintiff Alexander Say’s Motion for Attorney Fees

and Costs (Docket #31). Defendant John Adams has objected (Docket #32). Plaintiff has

replied (Docket #35). This matter is now ripe for adjudication. For the following reasons,

Plaintiff’s Motion for Attorney Fees and Costs is GRANTED in part and DENIED in part.

BACKGROUND

This matter stems from a constitutional challenge to Kentucky’s concealed weapon law,

KRS § 237.110. Plaintiff challenged a provision of the law requiring applicants seeking to

obtain licenses to carry concealed deadly weapons be citizens of the United States as

unconstitutional under the Fourteenth Amendment’s equal protection clause. Shortly after filing

his complaint in federal court on July 17, 2007, Plaintiff moved for a preliminary injunction.

The Court granted Plaintiff’s motion on March 14, 2008. Thereafter, Defendants moved

to dismiss the action as moot based upon a 2008 amendment to the law that removed the

citizenship requirement. Following negotiations between the parties, Plaintiff and Defendants

jointly moved for a permanent injunction and an offer of judgment. On June 24, 2008, the Court

granted the permanent injunction, thereby resolving the merits of the case, and allowed the

parties additional time in which to file their motions regarding attorney fees and costs.

ANALYSIS

Under the Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. § 1988, the district court is authorized to award reasonable attorney fees to prevailing parties in civil rights actions. As a preliminary matter, the Court must first determine whether Plaintiff is a prevailing party. “[N]o fee award is permissible until the plaintiff has crossed the ‘statutory threshold’ of prevailing party status.” Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 789 (1989).
A plaintiff is considered a prevailing party if he “succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “‘[T]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.’” Farrar v. Hobby, 506 U.S. 103, 111 (1992) (quoting Garland, 489 U.S. at 792-93). Here, Plaintiff has obtained a permanent injunction enjoining Defendants from enforcing the statutory provision limiting the issuance of carry concealed deadly weapon licenses to United States citizens. The entry of a permanent injunction qualifies as an enforceable judgment on the merits that “materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiffs.” Deja Vu v. Metropolitan Government of Nashville and Davidson County, 421 F.3d 417, 420 (6th Cir. 2005) (quoting Farrar, 506 U.S. at 111-12). Furthermore, neither Defendant contests Plaintiff’s prevailing party status. Therefore, the Court finds that Plaintiff is a prevailing party entitled to an award of attorney fees and costs under 42 U.S.C. § 1988.
Attorney fee awards under 42 U.S.C. § 1988 are calculated in accordance with the “lodestar” method, requiring the Court to determine “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. “[T]he fee
2

applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Id. at 437. In total, Plaintiff requests attorney fees in the amount of $54,900, which represents 252.1 hours expended at various hourly rates for work performed by five attorneys and one paralegal. Defendant objects to both Plaintiff’s proposed hourly rates and hours expended. Plaintiff also requests, and Defendant objects, to costs in the amount of $2,193.87.
A. Friedman Plaintiff requests a $300 hourly rate for 32.5 hours of work performed by attorney David A. Friedman. Under the lodestar method, this calculates to $9,750 in attorney fees. Friedman served as general counsel for the American Civil Liberties Union of Kentucky in this matter. He has over thirty years of constitutional and civil rights litigation experience and is partner in the law firm of Fernandez Friedman Haynes & Kohn PLLC in Louisville, Kentucky. Defendant makes several objections. First, Defendant requests a reduction of $50 in Friedman’s hourly rate. Defendant bases this reduction on payment of historic, rather than current hourly rates. Defendant cites Elliot v. Metropolitan Life Ins. Co., No. 04-174-DLB, 2007 WL 4192001, at *4-5 (E.D. Ky. Nov. 13, 2007), to argue that the historic market rate for counsel in Louisville, Kentucky performing work in November 2007 was $150-$250 an hour. Therefore, an hourly rate of $250 for work performed by Friedman is appropriate in this case. Plaintiff responds that the Court should determine what is a reasonable hourly rate not by looking to awards previously given in specific cases, but by determining the prevailing market rate. In support of $300 an hour as a reasonable hourly rate, Plaintiff offers the affidavit of David B. Tachau, a Louisville lawyer, who explains that $300 an hour is well within the range of
3

fees charged by lawyers with several years of federal litigation experience. “The primary concern in an attorney fee case is that the fee awarded be reasonable, that
is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir.1999) (citing Blum v. Stenson, 465 U.S. 886, 893, 897 (1984)). “To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). “The appropriate rate, therefore, is not necessarily the exact value sought by a particular firm, but is rather the market rate in the venue sufficient to encourage competent representation.” Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007). In the Sixth Circuit, “the district court has the discretion to choose either current or historical rates so long as it explains how the decision comports with the ultimate goals of awarding reasonable fees.” Id. at 617.
Here, the Court finds $300 an hour to be a reasonable hourly rate for Friedman. The Court bases its decision on Friedman’s considerable constitutional litigation experience and Tachau’s affidavit explaining that an hourly rate of $300 is comparable to that charged by other attorneys practicing in Louisville with a commensurate level of skill and experience. Because the history of this litigation is short, the Court finds no reason to apply a lower, “historic” rate.
Second, Defendant objects that the number of hours claimed by Friedman are excessive. Defendant argues that Friedman’s role was primarily advisory and unnecessary given the additional advisory roles played by other senior attorneys in this case. Therefore, Defendant requests that all of Friedman’s billable hours prior to April 18, 2008 - when Friedman became
4

actively involved in negotiations between the two parties - be disallowed as excessive and redundant. Plaintiff responds that Friedman played a significant role in substantively reviewing all the motions presented before the Court.
Friedman’s time sheets reveal that the majority of his time was spent reading and responding to emails discussing litigation strategy and logistics. Friedman began to play a more active role in the later months of 2008 when he participated in settlement negotiations between the parties, prepared the parties’ joint motion, and drafted the motion for attorney fees now before the Court. The Court is persuaded that Friedman played a unique role as general counsel of the ACLU, contributing both his oversight as an experienced constitutional litigator and as a senior administrator. For these reasons, the Court finds that Plaintiff’s request of 32.5 hours for the work performed by Friedman is reasonable.
B. Harrison Plaintiff requests a $300 hourly rate for 52.1 hours of work performed by attorney Jack B. Harrison. Under the lodestar method, this calculates to $15,630 in attorney fees. Harrison served as lead counsel for Plaintiff. He is a partner in the law firm of Frost Brown Todd, LLC (“FBT”), located in Cincinnati, Ohio, and spends a significant portion of his civil trial practice litigating constitutional issues. He is admitted to practice law in both Kentucky and Ohio. As the partner in charge, he supervised the work of other FBT associates involved in this matter, including attorneys Patricia Foster, Ali Razzaghi, Elizabeth Lenhart, and paralegal Taylor Ebelhar. Harrison’s affidavit states that his standard billable rate is $325 an hour. Defendant makes several objections. First, Defendant requests a $50 reduction in Harrison’s hourly rate. Defendant relies on the same arguments he made in regard to Friedman’s
5

hourly rate. Given Harrison’s previous litigation experience and relying on Tachau’s affidavit, the Court finds that $300 an hour is a reasonable rate.
Second, Defendant objects to discrepancies in the calculation of Harrison’s time sheets. The Court has reviewed Harrison’s submitted time sheets and concludes that he devoted a total of 55.6 hours to the case. Defendant also objects to time spent on media relations for FBT and the ACLU. Plaintiff does not oppose deducting the time Harrison spent on media relations. Therefore, the Court deducts 3 hours from Harrison’s total billable hours to discount the time he spent reviewing press releases on 7/26/07 and 3/14/08.1
Third, Defendant objects to the 0.7 hours Harrison spent on 8/2/07 finalizing and filing the motion for preliminary injunction. As Defendant correctly points out, Plaintiff’s motion for summary judgment was filed with the Court on July 20, 2007. Therefore, Harrison could not have finalized and filed the motion on August 2, 2007. Accordingly, the Court deducts the 0.7 hours Harrison billed on that date from his total billable hours.
Finally, Defendant requests a forty percent reduction in Harrison’s total remaining billable hours. Defendant argues that this reduction is necessary to ameliorate unreasonable, duplicative or excessive billing. Specifically, Defendant objects to Harrison’s billing for time spent in a conference with Razzaghi on one day, and then for a separate conference with Foster on the next. Defendant argues that instances such as these, where one conference with both associates present would have been sufficient, are redundant. Defendant also objects to the
1 The deduction of 1.6 hours on 7/26/07 is also appropriate because, in addition to time spent reviewing press releases, Harrison claims to have finalized the complaint on that date. However, as Defendant correctly points out, the complaint was filed with the Court on July 18, 2007. Therefore, Harrison should not be compensated for finalizing the complaint on July 26, 2007.
6

billing of email communications between the FBT attorneys regarding the general status of the case as redundant. Finally, Defendant objects to the time spent by Harrison prior to filing of the complaint as excessive. Harrison reviewed research performed by Foster as far back as August 2006, despite the filing of the complaint almost a year later in July 2007. Defendant argues that the issues presented in this action were not so complex as to warrant the expenditure of as many hours as Harrison spent reviewing research.
The lodestar amount may be adjusted up or down under the twelve factor test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and adopted by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). The twelve factors are: (1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 472, n.3. “‘Hours may be cut for duplication, padding, or frivolous claims’ by the ‘arbitrary but essentially fair approach of simply deducting a small percentage of the total hours.’” Kentucky Restaurant Concepts Inc. v. City of Louisville, 117 Fed. App’x 415, 2004 WL 2756966, at *3 (6th Cir. 2004) (quoting Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 636-37 (6th Cir.1979)).
The Court finds that a twenty percent (20%) reduction of Harrison’s remaining billable
7

hours is appropriate. Harrison spent a total of 12.1 hours reviewing research performed by FBT associates in 2006 alone. While recognizing the complexities inherent to constitutional litigation, the equal protection analysis in this case was relatively straightforward. Plaintiff emphasizes the novelty of the issue presented in a post-September 11th world, but the Court is unpersuaded that this greatly augmented the amount of preliminary research necessary in this case. In addition, the Court is persuaded that certain redundancies in inter-firm communications could have been avoided. When all these considerations are taken into account, the Court finds that Harrison’s total billable hours should be reduced to 41.5 hours, which reflects a deduction of 10.4 hours (51.9 hours x 20%) from Harrison’s remaining total of 51.9 billable hours (55.6 - 3.7 hours).
C. Foster & Razzaghi Plaintiff requests $180 an hour for 70.6 hours of work performed by attorney Patricia A. Foster and $175 an hour for 76.6 hours of work performed by attorney Ali Razzaghi. When calculated together using the lodestar method, this amounts to $26,113 in attorney fees. Foster and Razzaghi are both associates at FBT. Foster and Razzaghi graduated from law school in 2005 and 2006, respectively, and are licensed to practice law in Ohio. Defendant makes several objections. First, Defendant argues that the hourly rates for Foster and Razzaghi should be reduced to $150 an hour to reflect the lower end of the Louisville market rate applied by the court in Elliot because Foster and Razzaghi have practiced for less than three years. Plaintiff again cites to Tachau’s affidavit to argue that $180 and $175, respectively, reflect current Louisville market rates for associates in larger law firms. The Court finds that Foster and Razzaghi are entitled to hourly rates of $180 and $175, respectively. The
8

Court bases its decision in part on the information provided in Tachau’s affidavit and in part on Defendant’s exclusive reliance on the court’s decision in Elliot to conclude that $150 an hour is a more appropriate hourly rate. Defendant has presented no other argument for why $150 an hour better reflects what is adequately compensatory to attract competent counsel. Because Plaintiff has met his burden, the Court finds no reason to reduce Foster and Razzaghi’s hourly rates.
Second, Defendant argues that, like Harrison, Razzaghi’s time entries pertaining to media relations should be deducted from her total billable hours. Plaintiff does not object to this deduction. Therefore, the Court deducts 1.2 hours from Razzaghi’s total billable hours for the time she spent on 7/18/07 and 7/19/07 reviewing an ACLU press release.
Finally, the Court finds that a twenty percent (20%) reduction of Foster and Razzaghi’s remaining total billable hours is appropriate. This reduction is appropriate in light of multiple objections raised by Defendant concerning minor redundant or excessive billing claims and Defendant’s overall request that, like Harrison, Foster and Razzaghi’s total billable hours be reduced by forty percent. In particular, the Court notes that combined, Foster and Razzaghi billed approximately 75 hours for research performed prior to January 1, 2007. The Court is persuaded for the same reasons it stated above for Harrison that this reduction accurately accounts for the redundancies and excessive billing cited by Defendant. Accordingly, the Court reduces Foster’s total billable hours by 14.1 hours (70.6 hours x 20%) to 56.5 hours and Razzaghi’s remaining total billable hours by 15.1 (75.4 hours x 20%) to 60.3 hours.
D. Sharp Plaintiff requests $180 an hour for 17.7 hours of work performed by attorney William E.
9

Sharp. Under the lodestar method, this amounts to $3,186 in attorney fees. Since May 2007, Sharp has served as a staff attorney for the American Civil Liberties Union of Kentucky. He has eight years of litigation experience.
Defendant requests a $5 reduction in Sharp’s hourly rate. Defendant argues that, although Sharp has eight years of litigation experience, his affidavit reflects no specialized training or experience in civil rights matters. Therefore, Sharp should receive an hourly rate of $175. Given the Court’s previous determination that Foster and Razzaghi are entitled to $180 and $175 hourly rates, respectively, and the fact that both Foster and Razzaghi have less than three years of litigation experience, the Court finds no compelling reason to reduce Sharp’s requested hourly rate by $5 when he has eight years of litigation experience. Therefore, the Court finds that Sharp’s $180 hourly rate is reasonable.
Defendant argues that Sharp’s billable hours are unreasonable and duplicative. Specifically, Defendant argues that the majority of Sharp’s billable time was spent reviewing emails and documents. Because he did not prepare any pleadings or motions, and in light of the work already being performed by two experienced counsels of record, Friedman and Harrison, and two associates, Foster and Razzaghi, Defendant questions the contribution Sharp made in this case. Defendant also objects to the time Sharp spent reviewing press releases. For these reasons, Defendant objects to all of Sharp’s hours.
Plaintiff responds that Sharp played an active role in devising strategy and assessing the posture of Plaintiff’s case and performed much of this work through email communications with other counsel. Plaintiff does not object to deducting the time Sharp spent reviewing press releases.
10

Having reviewed Sharp’s time records, the Court finds that the nature of his involvement in this litigation was primarily advisory. The vast majority of Sharp’s time was spent reviewing and responding to emails. Plaintiff does not substantiate the work performed by Sharp other than by stating that it was necessary. While the Court is persuaded that Sharp played a role in facilitating communication among the various parties involved, it is convinced that Sharp’s role was often duplicative of work performed by other senior attorneys in this case. For these reasons, the Court finds it appropriate to reduce Sharp’s total billable hours by fifty percent (50%). The Court also reduces the total billable hours by 1.2 hours for the time Sharp spent reviewing and preparing press releases. Accordingly, the Court reduces Sharp’s total billable hours to 8.3 hours (16.5 hours x 50%).
E. Costs Plaintiff requests $2,193.87 for litigation expenses including filing fees, computerized research costs, long distance telephone calls, postage and copying costs. Defendant objects to payment of Plaintiff’s online research, PACER, and “miscellaneous expenses” fees, and requests additional substantiation for what Defendant characterizes as excessive copying fees. For example, Defendant cites a charge of $96 for copying performed on 11/1/2006. Plaintiff does not object to the deduction of all PACER and “miscellaneous expenses” fees. Therefore, the Court will deduct these fees. However, Plaintiff contends that its request for computerized research, telephone and copying costs is reasonable. In Northcross v. Board of Education of Memphis City Schools, the Sixth Circuit held that “[t]he authority granted in section 1988 to award a ‘reasonable attorney's fee’ included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are
11

normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of § 1988.” 611 F.2d 624, 639 (6th Cir. 1979).
Defendant cites King v. Floyd County Board of Education in support of his argument that he should not have to pay the costs associated with Plaintiff’s computerized legal research. 5 F.Supp.2d 504 (E.D. Ky. 1998), overruled on other grounds by 228 F.3d 622 (6th Cir. 2000). In King, the district court concluded that the defendant should not have to pay for plaintiffs’ counsel’s Westlaw charges because the cost of research is factored into the attorney’s hourly rate. Id. at 509. The Sixth Circuit has yet to address the issue of whether costs associated with computerized legal research are recoverable under § 1988.2 However, other circuit and district courts have awarded the costs associated with computerized research. See Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp.1017, 1023 (N.D. Ohio 1997) (compiling cases).
The Court finds that Plaintiff’s request for costs associated with computerized legal research is reasonable. Furthermore, Plaintiff’s request for $113 for copying costs does not appear to the Court to be excessive. For these reasons, the Court deducts only the costs associated with PACER and “miscellaneous expenses” fees in the amount of $65.50 from Plaintiff’s total request for costs.
F. Time & Preparation of Request for Attorney Fees Plaintiff’s counsel may recover attorney fees for the time and preparation taken to request
2 In Texler v. County Board of Summit Board of Mental Retardation & Developmental Disabilities, the Sixth Circuit held that the district court did not abuse its discretion in declining to award fees associated with LEXIS research as taxation of costs under 28 U.S.C. § 1920. 25 F.3d 1050, 1994 WL 252938, at *9-10 (6th Cir. 1994).
12

attorney fees. See Coulter v. State of Tenn., 805 F.2d 146, 151 (6th Cir. 1986). However, a

prevailing party’s request for time spent preparing his request for fees may not exceed three

percent (3%) of the hours spent in his main case. Id.; see also Auto Alliance Intern., Inc. v. U.S.

Customs Service, 155 Fed. App’x 226, 2005 WL 3149673, at *3 (6th Cir. 2005) (“This Court's

general rule is that, in the absence of unusual circumstances, the “fees for fees” recovery should

not exceed three percent of the hours in the main case which is decided without trial.).

The Court does not find, nor does Plaintiff argue, that unusual circumstances compel the

Court to apply a higher percentage rate. Twenty-two hours of the legal work performed by

Friedman, Razzaghi, Harrison, and Sharp was spent on matters related to attorneys fees.3

Plaintiff’s original request for attorneys fees was for 252.1 hours of work expended. Three

percent of 252.1 hours is 7.6 hours. Therefore, the Court will only allow compensation for 7.6

hours of work related to attorney fees, electing to deduct 14.4 hours from Friedman’s total of

16.3 hours spent on researching and drafting Plaintiff’s motion for attorney fees and reply brief.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Attorney Fees and Costs is GRANTED

in part and DENIED in part. In sum, Plaintiff is entitled to an attorney fee award of

$44,545.87.

The Court calculates Plaintiff’s award as follows:

Attorney David A. Friedman

25.1 hours x $300 an hour $7,530.00

3 Friedman billed 16.3 hours for researching and drafting Plaintiff’s motion for attorney fees and reply brief. Harrison billed 3.3 hours for reviewing and responding to emails regarding attorney fee issues. Razzaghi billed 1 hour reviewing emails regarding attorney fees. Sharp billed 1.4 hours for reviewing emails re: time computation and assembling his time sheets.
13

Attorney Jack B. Harrison Attorney Patricia A. Foster Attorney Ali Razzaghi Attorney William Sharp Paralegal Taylor A. Ebelhar Costs
An appropriate order shall issue.

41.5 hours x $300 an hour $12,450.00 56.5 hours x. $180 an hour $10,170.00 60.3 hours x $175 an hour $10,552.50 8.3 hours x $180 an hour $1,494.00 2.6 hours x $85 an hour $221.00
$2,128.37 Total: $ 44,545.87

March 24, 2009

14

 
 Case: 3:07-cv-377 As of: 07/03/2012 02:25 PM EDT 1 of 4
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:07−cv−00377−TBR

CLOSED

Say v. Adams et al Assigned to: Senior Judge Thomas B. Russell Cause: 42:1983 Civil Rights Act
Plaintiff Alexander M. Say

Date Filed: 07/18/2007 Date Terminated: 03/25/2009 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Jack B. Harrison Cors &Bassett, LLC 537 E. Pete Rose Way, Suite 400 Cincinnati, OH 45202−3578 513−852−8208 Fax: 513−852−8222 Email: jbh@corsbassett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William E. Sharp ACLU of Kentucky Foundation, Inc. 315 Guthrie Green Street Suite 300 Louisville, KY 40202−3820 502−581−9746 Fax: 502−589−9687 Email: sharp@aclu−ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Friedman 325 W. Main Street, Suite 150 Louisville, KY 40202 502−396−6405 Fax: 502−657−7152 Email: daf@daf7.com ATTORNEY TO BE NOTICED
David A. Friedman ACLU of Kentucky Foundation, Inc. 315 Guthrie Green Street Suite 300 Louisville, KY 40202−3820 502−581−9746 Fax: 502−589−9687 Email: dfriedman@ffgklaw.com ATTORNEY TO BE NOTICED

V.
Defendant
John Adams in his official capacity as Commissioner Kentucky State Police Headquarters

represented by Roger G. Wright Kentucky State Police Legal Office 919 Versailles Road Frankfort, KY 40601 502−782−1787 Fax: 502−573−1636 Email: rogerg.wright@ky.gov

Case: 3:07-cv-377 As of: 07/03/2012 02:25 PM EDT 2 of 4

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen D. Lynn Kentucky Justice &Public Safety Cabinet 521 Lancaster Avenue Richmond, KY 40475−3102 859−622−3073 Fax: 859−622−5027 Email: steve.lynn@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Aubrey in his official capacity as Jefferson County Sheriff

represented by N. Scott Lilly Jefferson County Attorney 531 Court Place, Suite 900 Louisville, KY 40202 502−574−8083 Fax: 502−574−5573 Email: scott.lilly@louisvilleky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/18/2007
07/18/2007 07/18/2007 07/20/2007
08/01/2007
08/01/2007
08/06/2007 08/07/2007
08/21/2007 08/21/2007 09/26/2007

# Docket Text
1 COMPLAINT against John Adams, John Aubrey Filing fee $ 350, receipt number 567622, filed by Alexander M. Say. (Attachments: # 1 Cover Sheet # 2 Summons John Adams# 3 Summons John Aubrey)(CSD) Additional attachment(s) added on 7/23/2007 (CSD). (Entered: 07/19/2007)
2 Case Assignment (Random Selection): Case Assigned to Judge Thomas B. Russell. Magistrate designation: USMJ Dave Whalin. (CSD) (Entered: 07/19/2007)
3 Summons Issued as to John Adams, John Aubrey. (Attachments: # 1 Summons Col. John Aubrey)(CSD) (Entered: 07/19/2007)
4 MOTION for Preliminary Injunction by Alexander M. Say. Responses due by 8/7/2007 (Attachments: # 1 Memorandum in Support # 2 Proposed Order)(Harrison, Jack) (Entered: 07/20/2007)
5 SUMMONS Returned Executed by Alexander M. Say as to John Adams served on 7/23/2007, answer due 8/13/2007. (Attachments: # 1 Receipt)(Harrison, Jack) (Entered: 08/01/2007)
6 SUMMONS Returned Executed by Alexander M. Say as to John Aubrey served on 7/23/2007, answer due 8/13/2007. (Attachments: # 1 Receipt)(Harrison, Jack) (Entered: 08/01/2007)
7 ANSWER to Complaint by John Adams.(Wright, Roger) (Entered: 08/06/2007)
8 RESPONSE to Motion re 4 MOTION for Preliminary Injunction by John Adams. Replies due by 8/21/2007. (Attachments: # 1 Proposed Order)(Wright, Roger) (Entered: 08/07/2007)
9 REPLY re 8 Response to Motion in Support of Motion for Preliminary Injunction by Alexander M. Say. (Harrison, Jack) (Entered: 08/21/2007)
REPLY to Response to Motion re 4 MOTION for Preliminary Injunction by Alexander M. Say. (CSD) (SEE DN 9 FOR PDF) (Entered: 08/22/2007)
10 ORDER by Judge Thomas B. Russell (EBOC) on 09/26/2007; Scheduling Conference set for 10/18/2007 09:15 AM EDT in Teleconference before Judge Thomas B. Russell.cc:Counsel (CSD) (Entered: 09/26/2007)

Case: 3:07-cv-377 As of: 07/03/2012 02:25 PM EDT 3 of 4

09/27/2007
09/28/2007 10/08/2007 10/09/2007 10/17/2007 10/17/2007 10/18/2007 11/06/2007
11/19/2007 01/18/2008 03/14/2008 03/14/2008 04/15/2008 05/05/2008
05/13/2008 06/02/2008 06/04/2008 06/09/2008 06/16/2008

11 MOTION for Entry of Default as to Defendant Col. John Aubrey in his Official Capacity as Jefferson County Sheriff by Alexander M. Say.Responses due by 10/15/2007 (Attachments: # 1 Affidavit of Jack Harrison in Support of Request for Entry of Default by the Clerk) (Harrison, Jack) Modified on 9/28/2007 to correct motion relief(CSD). Additional attachment(s) added on 9/28/2007 (Debow, Carolyn). (Entered: 09/27/2007)
12 ERROR: DOCUMENT SHOULD HAVE BEEN FILED AS ATTACHMENT; attached to DN 11 by Clerk (CSD). (Entered: 09/28/2007)
13 NOTICE by Alexander M. Say re 11 MOTION for Entry of Default to Withdraw Reqeust for Entry of Default By The Clerk (Harrison, Jack) (Entered: 10/08/2007)
14 ANSWER to Complaint by John Aubrey. (Lilly, N.) (Entered: 10/09/2007)
15 NOTICE of Appearance by William E. Sharp on behalf of Alexander M. Say (Sharp, William) (Entered: 10/17/2007)
16 REPORT of Rule 26(f) Planning Meeting by Alexander M. Say. (Harrison, Jack) (Entered: 10/17/2007)
17 NOTICE of Appearance by David A. Friedman on behalf of Alexander M. Say (Friedman, David) (Entered: 10/18/2007)
18 NOTICE by Alexander M. Say Certifying Compliance with Requirements of FRCP 5.1 Regarding Notice to Commonwealth Attorney General of Constitutional Challenge (Attachments: # 1 Exhibit Proof of Service on Kentucky Attorney General) (Harrison, Jack) (Entered: 11/06/2007)
19 NOTICE/ORDER by Judge Thomas B. Russell on 11/19/2007 re certification to the Attorney General of Kentucky. cc:Counsel, Attorney General of Kentucky (CSD) (Entered: 11/19/2007)
20 NOTICE by John Adams of Intent Not to Intervene (Cross, Jeffrey) (Entered: 01/18/2008)
21 MEMORANDUM AND OPINION by Judge Thomas B. Russell on 03/13/2008;appropriate order shall issue.cc:counsel (CSD) (Entered: 03/14/2008)
22 ORDER granting 4 Motion for Preliminary Injunction. Signed by Judge Thomas B. Russell on 03/13/2008. cc:counsel (CSD) (Entered: 03/14/2008)
23 MOTION to Dismiss Action As Moot by Defendant John Adams Responses due by 5/5/2008 (Attachments: # 1 Proposed Order, # 2 Exhibit House Bill 639, # 3 Exhibit House Bill 639 Vote History) (Wright, Roger) (Entered: 04/15/2008)
24 Proposed Agreed Order extending time to respond re 23 MOTION to Dismiss Action As Moot by Alexander M. Say, John Adams. (Friedman, David) Modified on 5/6/2008 to add "agreed" to docket text; e−filer advised of correct event (CSD). (Entered: 05/05/2008)
25 ORDER by Judge Thomas B. Russell on 05/12/2008 extending time for plaintiff to file response re 23 MOTION to Dismiss Action As Moot to 6/4/2008.cc:counsel (CSD) (Entered: 05/13/2008)
26 NOTICE by John Adams Offer Of Judgment (Attachments: # 1 Proposed Order) (Wright, Roger) (Entered: 06/02/2008)
27 Proposed Agreed Order/Stipulation for supplemental extension by Alexander M. Say, John Adams. (Friedman, David) (Entered: 06/04/2008)
28 AGREED ORDER by Judge Thomas B. Russell on 06/06/2008 extending deadline for plaintiff to respond re 23 MOTION to Dismiss to 6/16/2008)cc:counsel (CSD) (Entered: 06/09/2008)
29 Joint MOTION for Permanent Injunction and to set fees briefing schedule by Plaintiff Alexander M. Say, Defendant John Adams Responses due by 7/7/2008 (Attachments: # 1 Proposed Order entering partial judgment and setting briefing schedule on fees) (Friedman, David) (Entered: 06/16/2008)

Case: 3:07-cv-377 As of: 07/03/2012 02:25 PM EDT 4 of 4

06/25/2008 07/24/2008
08/06/2008
08/20/2008 08/22/2008 08/26/2008 03/25/2009 03/25/2009 05/12/2009

30 ORDER granting 29 Motion to convert preliminary injunction into Permanent Injunction; motion for atty fees due within 30 days. Signed by Judge Thomas B. Russell on 06/24/2008. cc:counsel (CSD) (Entered: 06/25/2008)
31 MOTION for Attorney Fees and costs by Plaintiff Alexander M. Say Responses due by 8/11/2008 (Attachments: # 1 Memorandum in Support of fees and costs motion, # 2 Exhibit Ex. 1: Harrison affidavit and time and cost records, # 3 Exhibit Ex. 2: Foster affidavit and time records, # 4 Exhibit Ex. 3: Razzaghi affidavit and time records, # 5 Exhibit Ex. 4: Friedman declaration and time records, # 6 Exhibit Ex. 5: Sharp declaration and time records, # 7 Exhibit Ex. 6: Tachau declaration, # 8 Proposed Order awarding fees and costs) (Friedman, David) (Entered: 07/24/2008)
32 RESPONSE to Motion re 31 MOTION for Attorney Fees and costs In Partial Opposition filed by John Adams. Replies due by 8/20/2008. (Attachments: # 1 Proposed Order, # 2 Appendix Elliot v. Metropolitan Life Ins. Co., 2007 WL 4192001 (E.D.Ky. 2007), # 3 Appendix In Re Subpoena To Kasten, 2008 WL 1908755 (E.D.Ky. 2008), # 4 Appendix Texler v. County of Summit Bd. of Mental Retardation and Developmental Disabilities, 25 F.3d 1050 (6th Cir. 1994)(1994 WL 252938)) (Wright, Roger) (Entered: 08/06/2008)
33 Unopposed MOTION for Extension of Time to File Response/Reply as to 31 MOTION for Attorney Fees and costs, 32 Response to Motion,, by Plaintiff Alexander M. Say Responses due by 9/2/2008 (Attachments: # 1 Proposed Order) (Friedman, David) (Entered: 08/20/2008)
34 AGREED ORDER by Judge Thomas B. Russell on 8/21/08: Pla is granted an ext of time up to and including 8/25/08 to file reply brief in support of motion for attorneys' fees and costscc:counsel (KJS) (Entered: 08/22/2008)
35 REPLY to Response to Motion re 31 MOTION for Attorney Fees and costs filed by Alexander M. Say. (Attachments: # 1 Exhibit Declaration of David A. Friedman) (Friedman, David) (Entered: 08/26/2008)
36 MEMORANDUM AND OPINION by Chief Judge Thomas B. Russell on 03/24/2009 re 31 MOTION for Attorney Fees and costs filed by Alexander M. Say; order to issue this date. cc:counsel (CSD) (Entered: 03/25/2009)
37 ORDER granting in part and denying in part 31 Motion for Attorney Fees in the amount of $44,545.87. Signed by Chief Judge Thomas B. Russell on 03/24/2009. cc:counsel (CSD) (Entered: 03/25/2009)
38 NOTICE Of Satisfaction Of Judgment by John Adams (Wright, Roger) (Entered: 05/12/2009)