Teng v. Town of Kensington et al. CV-09-8-JL 2/17/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Chao-Cheng Teng

v. Civil N o . 09-cv-8-JL Opinion N o .

Town of Kensington, et a l .

MEMORANDUM ORDER

This civil rights case involves a series of disputes between

a New Hampshire resident and local officials over voting rights,

gun rights, and police protection. Plaintiff Chao-Cheng Teng, a

naturalized citizen originally from China, brought suit under

against the officials and their respective towns

(Danville and Kensington) alleging violations of the Second,

Fourteenth, and Fifteenth Amendments. Specifically, she claims

that the defendants denied her the right to vote on account of

her race, unreasonably denied her a license to carry a concealed

handgun, and refused--also because of her race--to bring charges

against a neighbor who allegedly assaulted her. This court has

subject-matter jurisdiction under

(federal

question).

The defendants have moved for summary judgment on all

claims, see Fed. R. Civ. P. 5 6 , arguing that they had legitimate

and non-discriminatory reasons for their actions. Although Teng

has objected to the motions through her counsel, she has not presented any evidence or case law to support her position.1

Summary judgment is granted. The record shows that the

defendants did not deny Teng the right to vote; they merely

prevented her from voting twice on the same day and from causing

a disturbance at the polling station. Nor did the defendants

deny Teng the right to bear arms; they merely requested that she

provide more background information to support her application

for a license for concealed carrying. Finally, their refusal to

prosecute her neighbor was based not on Teng’s race, but rather

on a lack of evidence.

I. Applicable legal standard

Summary judgment is appropriate where “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). In making this determination, the court

“must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party’s favor.” Mulvihill v . Top-Flite Golf Co.,

5 , 19 (1st Cir. 2003).

1 The parties mutually declined this court’s offer to hold oral argument, which is its ordinary practice for dispositive motions.

2 Where, as here, the non-moving party fails to submit any

evidence to support her objection,2 “[a]ll properly supported

material facts in the moving party’s factual statement shall be

deemed admitted.” L.R. 7.2(b)(2); see also DeJesus v . LTT Card

Svcs., Inc.,

6 , 20 (1st Cir. 2007). Summary judgment

does not, however, “automatically follow.” Stonkus v . City of

Brockton Sch. Dep’t,

7 , 102 (1st Cir. 2003). This

court still must evaluate whether the defendants’ submissions

entitle them to judgment as a matter of law. See Fed. R. Civ. P.

56(e) (“If the adverse party does not . . . respond, summary

judgment, if appropriate, shall be entered against the adverse

party.”) (emphasis added).

II. Voting rights claims

First, Teng alleges that the two towns and their respective

town moderators violated the Fourteenth and Fifteenth Amendments

by denying her the right to vote because of her race. This court

will (A) summarize the relevant facts and then (B) analyze Teng’s

claims on the merits. As explained below, the defendants did not

deny Teng’s right to vote. They merely prevented her from voting

2 Teng purports to “stand on the assertions in her [amended] complaint,” which is unsworn. But a party opposing summary judgment “may not rest upon mere allegations in . . . an unverified complaint or lawyer’s brief.” De la Vega v . San Juan Star, Inc.,

1 1 , 118 n.9 (1st Cir. 2004).

3 in both the Republican and Democratic primary elections on the

same day, which is prohibited by state law, and from causing a

disturbance at the polling station during a general election.

Neither is constitutionally protected activity.

A. Facts

Teng went to the Kensington polling station in November 2004

to vote in the general election. After receiving her ballot, she

asked the town moderator to explain a ballot question to her.

The moderator explained what the question meant, but said he

could not suggest how to answer i t . Teng became upset and began

arguing with the town clerk, using abusive language. The

moderator suggested that she sit down, complete her ballot, and

then leave the polling station. Teng responded by throwing her

ballot on the table, redirecting her abusive language at the

moderator, and putting the sharp end of her pencil near his face

to make her point. The moderator repeatedly asked her to

withdraw the pencil. Once she did, he asked her to leave the

polling station if she was done voting. Teng walked out without

casting her ballot.

In September 2008, after moving to nearby Danville, Teng

went to that town’s polling station to vote in the state primary

election. As a registered independent, she wanted to vote for

some Republican candidates and some Democratic candidates. But

4 the town moderator explained to her that she had to vote in

either one party’s primary or the other. Teng voted in the

Republican primary, as confirmed by the official election

checklist, and then left the voting area. She then tried to re-

enter to vote in the Democratic primary. The town moderator

denied her re-entry.

B. Analysis

The Supreme Court has long recognized voting as a

fundamental right under the Fourteenth Amendment.3 See, e.g.,

Reynolds v . Sims,

(1964) (citing Yick Wo v .

Hopkins,

(1886)). When the right is severely

restricted, the Fourteenth Amendment requires that the

restriction be “justified by a narrowly drawn state interest of

compelling importance.” Crawford v . Marion County Election Bd.,

128 S . C t . 1610, 1616 (2008) (citing Norman v . Reed,

(1992)). And even when the restriction is less

severe, it “must be justified by relevant and legitimate state

interests sufficiently weighty to justify the limitation.”

No voting restriction based on race is ever justified, because

3 See U.S. Const. amend. XIV (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

5 the Fifteenth Amendment expressly provides that the right to vote

“shall not be denied or abridged . . . on account of race, color,

or previous condition of servitude.” U.S. Const. amend. XV; see

also Rice v . Cayetano,

(2000).

Here, Teng cannot show that Kensington and its town

moderator restricted her voting rights at all. The record

indicates that Teng caused a disturbance at the Kensington

polling station and that the moderator asked her, first, to sit

down and complete her ballot, and second, to leave the polling

station if she was done voting. He did not ask her to leave

without voting, nor did he have her forcibly removed. Rather, it

was Teng’s own decision to leave without casting her ballot. She

cannot hold the defendants liable for that self-inflicted harm.

See, e.g., Hollander v . McCain,

3 , 70 n.7

(D.N.H. 2008) (noting that “‘self-inflicted’ harm caused by the

voter . . . does not amount to an infringement of the franchise

right”) (citing 1 Lawrence H . Tribe, American Constitutional Law

§ 13-24, at 1122-23 (2d ed. 1988), and Rosario v . Rockefeller,

(1973)).

Moreover, even if the moderator’s statements could be

construed as restricting Teng’s voting rights, such a restriction

would survive strict scrutiny under the Fourteenth Amendment.

The government has a compelling and non-discriminatory interest

in the “avoidance of . . . disruption at polling places,” Am.

6 Broad. C o . v . Blackwell,

(S.D. Ohio

2006), and the moderator’s statements were narrowly tailored to

serve that interest. He gave Teng fair warning and a reasonable

opportunity to cease her disruptive behavior and cast her ballot

in an orderly manner. When she refused to do s o , he was

justified in suggesting that she leave the polling station. Cf.

Garionis v . Newton,

(8th Cir. 1987) (no

constitutional violation where voter was forcibly removed from

polling station for wearing political button); Cotz v . Mastroeni,

3 2 , 366-67 (S.D.N.Y. 2007) (no constitutional

violation where poll watcher was forcibly removed from polling

station for “being disruptive”).

And finally, even if Teng could show that Kensington and its

moderator denied her the right to vote, she failed to bring her

constitutional challenge in a timely manner. The statute of

limitations for a § 1983 claim “is that which the State [where

the cause of action arose] provides for personal-injury torts.”

Wallace v . Kato,

8 4 , 387 (2007). New Hampshire, where

all of Teng’s claims arose, has a three-year statute of

limitations for personal actions. See N.H. Rev. Stat. § 508:4;

Gorelik v . Costin,

1 7 , 9 (applying that limitations

period to a § 1983 action). More than four years passed between

the November 2004 voting incident and when Teng filed suit in

7 January 2009.4 Teng has not articulated any reason why the

limitations period should be tolled. Her voting rights claim

against Kensington and its moderator must therefore be rejected

as untimely, as well as on the merits.

Her voting rights claim against Danville and its moderator

fares no better. The record shows that Teng attempted to vote in

both the Republican and Democratic primary elections on the same

day, which is contrary to state law. See N.H. Rev. Stat. §

659:14, I (“No person shall be permitted to vote in any more than

one party primary during any primary election.”). The moderator

simply required her to choose between the two primary elections

and, once she did, prevented her from voting a second time.

While that may be a restriction on her right to vote, it is a

legitimate and non-discriminatory one that the Supreme Court has

repeatedly upheld against constitutional challenge. See Clingman

v . Beaver,

8 1 , 595 (2005) (explaining that states “must

be allowed to limit voters’ ability to roam among parties’

primaries”) 5 ; Rosario,

; see also Hollander, 566

4 In her amended complaint, Teng alleged that the Kensington voting incident occurred in November 2006. But the defendants have introduced evidence that it actually occurred in November 2004. Teng has not presented any evidence to the contrary. This court therefore accepts the defendants’ date as admitted. See supra Part I . 5 The Supreme Court noted in Clingman, in fact, that New Hampshire’s semi-closed primary system is analogous to the one upheld as constitutional in that case. 544 U.S. at 586 n.1 (citing N.H. Rev. Stat. § 659:14).

8 F. Supp. 2d at 70 n.7 (citing Rosario). Indeed, Teng’s objection

appears not to dispute that summary judgment is appropriate on this claim.6

In sum, because the defendants have offered legitimate, non-

discriminatory explanations for their actions, and because Teng

has not presented any evidence suggestive of racial

discrimination, this court grants summary judgment to the

defendants on her voting rights claims under the Fourteenth and

Fifteenth Amendments. In addition, this court rejects her claim

against Kensington and its moderator as barred by the statute of

limitations.

III. Gun rights claims

Next, Teng alleges that the towns violated the Second

Amendment by unreasonably denying her applications for a license

to carry a concealed handgun. This court will again (A)

summarize the facts and (B) analyze the merits. As explained

below, the defendants did not deny Teng the right to keep and

bear arms. They merely requested that she provide more

background information to support her license applications, which

she declined to d o . Even if those requests went beyond the

"Document no. 25, ¶ 5.

9 requirements of state law, they did not violate the Second

Amendment.

A. Facts

In October 2004, Teng applied to the town of Kensington for

a license to carry a concealed handgun, using a one-page

application form approved by the state. See N.H. Rev. Stat. §

159:6. The police chief, who had been designated by the town to

review such applications, denied Teng’s application by letter

less than two weeks later. He explained that the town was

“unable to accept this application” because it “is not an

original, it is incomplete, and it is not dated.”7 The police

chief closed his letter by inviting Teng to contact him with any

questions. Teng never submitted another application to the town.

She attempted to renew her license request orally at some point

in 2004 or 2005, but the town requires all applications to be

submitted in writing on the state-approved form.8

7 Teng had filled out most of the form, but omitted a few responses (e.g., she did not explain a prior arrest) and failed to provide an original signature certifying that her answers were true. Also, the application appeared to have been completed six months before its submission. 8 In her amended complaint, Teng claimed that she made the oral request in October 2006. But that is inconsistent with the record, which indicates that she had moved to Danville by January 2006 and was still living at the same Danville address as of November 2008. Teng has not offered any evidence to the contrary. Thus, even construing the record in the light most

10 After moving to Danville, Teng applied in January 2006 for a

license from that town to carry a concealed handgun. As part of

the review process, Danville’s police chief requested Teng’s

criminal history from the county sheriff’s department, which

advised him that she had been denied a similar license in

Kensington. So he contacted the Kensington police chief and

requested a copy of Teng’s entire police file, which was about

four inches thick and thus took longer than usual to review.

After reviewing i t , Danville’s police chief sent Teng a letter in

March 2006 asking if he could meet with her to discuss certain

concerns. Teng never arranged such a meeting. The police chief

took no further action on her application.

B. Analysis

The parties have devoted much of their briefs to debating

whether the defendants properly applied New Hampshire law in

processing Teng’s applications for a license to carry a concealed

handgun. See N.H. Rev. Stat. § 159:6. That debate is

misdirected, though, because Teng has not asserted any claims

under New Hampshire law. Her only claim is that the defendants

violated the Second Amendment, which is a question of federal

favorable to her, the oral request must have been made in 2004 or 2005.

11 law.9 As our court of appeals explained in a similar § 1983 case

based on the Second Amendment, the plaintiff “simply has no

federal right to demand that [the police chief] stay within the

confines of state law in conducting background checks” for gun

licensing and registration purposes. Gardner v . Vespia,

(1st Cir. 2001) (emphasis in original). The only

question that matters here is whether the defendants’ refusal to

grant Teng a license to carry a concealed handgun--unless and

until she provided more background information to support her

applications--amounted to a denial of her Second Amendment

rights.

The Second Amendment provides in full: “A well regulated

Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. I I . The Supreme Court recently

held for the first time that this provision “guarantee[s] the

individual right to possess and carry weapons in case of

confrontation,” such that a total ban on the possession of

9 In her summary judgment objection, Teng also asserted for the first time “a violation of her Due Process rights.” But no such claim appears in her amended complaint, and she has not sought leave to amend the complaint a second time. The claim is therefore untimely and waived. Moreover, the record shows that, while Teng may not have liked their decisions, the defendants gave her due process. Indeed, she really seems to be arguing that her applications should have been approved with less process. 12 handguns is unconstitutional.10 Dist. of Columbia v . Heller, 128

S . C t . 2783, 2797 (U.S. 2008). But the Court cautioned that the

right is “not unlimited” and that nothing in Heller “should be

taken to cast doubt” on various “longstanding” restrictions on

gun possession, which are still “presumptively lawful.”

at

2816-17 & n.26. These include, but are not limited t o , (1)

“prohibitions on carrying concealed weapons,” (2) “prohibitions

on the possession of firearms by felons and the mentally ill,”

(3) “laws forbidding the carrying of firearms in sensitive

places,” and (4) “conditions and qualifications on the commercial

sale of arms.” Id.; see also United States v . Rene E . ,

, 15 (1st Cir. 2009).

The Supreme Court declined in Heller to establish a precise

standard of review for Second Amendment claims, stating only that

something more than rational-basis review is required and that a

total ban on handguns could not pass muster “[u]nder any of the

standards of scrutiny that we have applied to enumerated

constitutional rights.” 128 S . C t . at 2817 & n.27. The converse

10 The Supreme Court is currently reviewing a case that asks whether the Second Amendment applies to state and local governments by way of the Fourteenth Amendment. See McDonald v . City of Chicago, 130 S . C t . 48 (2009) (granting certiorari to review Nat’l Rifle Ass’n of Am., Inc. v . City of Chicago,

(7th Cir. 2009)). This court need not express any opinion on that incorporation issue, because even assuming that the Second Amendment applies, the defendants still have not violated i t .

13 is true here: Teng’s claim cannot succeed under any such

standard. The defendants did not ban her from possessing

handguns, or even from carrying them. They merely asked her to

provide more background information for use in determining

whether she was suitable for concealed carrying.11 Given that

Heller refers to outright “prohibitions on carrying concealed

weapons” as “presumptively lawful,” see

at 2816-17 & n.26,

far lesser restrictions of the sort imposed here (i.e., requiring

that Teng complete a one-page application and meet with the

police chief to discuss it) clearly do not violate the Second

Amendment.

As with her voting rights claim, Teng also failed to bring

her Second Amendment claim against Kensington within the three-

year statute of limitations. See supra Part II.B (citing N.H.

Rev. Stat. § 508:4). The police chief denied her license

application in October 2004, more than four years before she

filed this lawsuit. And while Teng alleges that she orally

11 Although the New Hampshire statute calls it a license “to carry a loaded pistol or revolver,” N.H. Rev. Stat. 159:6, without mentioning the word “concealed,” the New Hampshire Supreme Court has repeatedly explained that the statute “requires individuals to obtain permits to carry loaded, concealed weapons.” Garand v . Town of Exeter,

(2009) (quoting Bleiler v . Chief, Dover Police Dep’t,

(2007)) (emphasis added); see also Conway v . King,

(D.N.H. 1989) (calling it a “license to carry a concealed weapon”). In other words, the statute “does not prohibit carrying weapons; it merely regulates the manner of carrying them.” Bleiler,

.

14 renewed the application at a later point, that too happened at

least three years before she filed suit. See supra note 8 .

Teng’s claim against Kensington must therefore be rejected as

untimely, as well as on the merits.

IV. Refusal-to-prosecute claim

Finally, Teng alleges that Danville and one of its police

officers violated her Fourteenth Amendment rights by refusing, on

account of her race, to bring criminal charges against a neighbor

who allegedly assaulted her.12 As with Teng’s other claims, this

court will (A) summarize the facts and (B) analyze the merits.

As explained below, the record shows that the officer declined to

charge the neighbor with assault not because of Teng’s race, but

rather because of a lack of evidence to support her allegations,

which an eyewitness refuted.

12 As part of this claim, Teng also alleges that the dants failed to protect her from criminal activity and failed to conduct an adequate investigation of the crime scene. There is no evidence in the record to support those allegations. Moreover, Teng has not cited any authority for the proposition that such failures violate the Fourteenth Amendment. See, e.g., Ramos-Pinero v . Puerto Rico,

8 , 53 & n.6 (1st Cir. 2006) (“failure to protect an individual against private violence generally does not constitute a violation” of the Fourteenth Amendment) (citing DeShaney v . Winnebago County Dep’t of Soc. Svcs.,

(1989)).

15 A. Facts

In June 2007, the Danville police department received a

report of an altercation between Teng and one of her neighbors,

Troy Barnes. Officer Jason Pond went to the campground where

they lived and spoke with both of them. Barnes said that Teng

had been yelling at him while he was outside raking his yard and

that he told her to leave, using his garden hoe to point the way.

Teng grabbed the hoe, he said, causing a struggle in which her

cheek came into contact with a lit cigarette that he was smoking.

He denied having any intent to burn her.

Teng told a very different story. She said that Barnes had

assaulted her with the hoe, burned her with his cigarette, and

attempted to strangle her. Although the officer did not see any

visible marks on Teng’s neck, he called for medical support and

invited her to provide a written statement (which she declined to

do). The officer also spoke with a number of witnesses at the

scene. One of them saw Teng attempt to gain control of Barnes’s

hoe and believed that her contact with the cigarette was

accidental. Two others heard Teng yelling at Barnes and refusing

to leave his yard despite repeated requests. None of them could

corroborate Teng’s allegations.

Before leaving the scene, the officer told Teng and Barnes

that both of them could be charged with simple assault for

16 engaging in “mutual combat.” See N.H. Rev. Stat. § 631:2-a;

State v . Place,

(2005). After reviewing the

evidence and sharing it with the police chief, however, the

officer determined that he did not have probable cause to bring

assault charges against Barnes. He did, however, pursue a

disorderly conduct charge against Teng. The county prosecutor

later decided to drop the charge.13

B. Analysis

“Prosecutorial discretion is a hallmark of the criminal

justice system.” United States v . Welch,

(1st

Cir. 1993). The Supreme Court has made clear that law

enforcement officers have “broad discretion” in deciding whom to

charge with crimes and what crimes to charge. Wayte v . United

States,

9 8 , 607 (1985). But that discretion is not

entirely “unfettered.” Id. at 608. The decision of whether to

prosecute “may not be ‘deliberately based upon an unjustifiable

standard such as race, religion, or other arbitrary

classification.’” Id. (quoting Bordenkircher v . Hayes,

(1978)). Such discrimination violates the Equal

13 Teng has not challenged (or even mentioned) the disorderly conduct charge in her amended complaint or summary judgment objections. She focuses instead on the refusal to charge Barnes. This court does the same.

17 Protection Clause of the Fourteenth Amendment. See U.S. Const.

XIV (“nor [shall any State] deny to any person within its

jurisdiction the equal protection of the laws”).

To establish a selective prosecution claim based on race,

Teng would need to present “clear evidence” of both

discriminatory intent and effect.14 United States v . Lewis,

0 , 25 (1st Cir. 2008) (citing United States v . Armstrong,

(1996)). As to intent, the evidence must show

that the defendants decided not to prosecute her neighbor “at

least in part because o f , not merely in spite of,” race.

(quoting Wayte, 470 U.S. at 6 1 0 ) . There is a “formidable”

presumption in such cases that the police acted with

“regularity,” which includes good faith, in making their

decision. Id. As to effect, the evidence must show that

14 Although the defendants do not challenge i t , Teng’s standing to bring this claim is questionable. The Supreme Court has said many times that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Town of Castle Rock v . Gonzales,

4 8 , 767 n.13 (2005) (quoting Linda R.S. v . Richard D.,

1 4 , 619 (1973)). In keeping with that principle, “courts have generally declined to recognize standing on the part of victims of crimes to bring a § 1983 action based upon the lack of prosecution of others,” Fulson v . City of Columbus,

, 6 (S.D. Ohio 1992), “even when the failure to prosecute was allegedly discriminatory.” Parkhurst v . Tabor,

6 1 , 866 (8th Cir. 2009) (citing United States v . Grundhoefer,

8 8 , 791 (2d Cir. 1990), and Sattler v . Johnson,

2 4 , 227 (4th Cir. 1988)). But because the defendants have not argued that Teng lacks standing, and because her claim fails on the merits anyway, this court expresses no opinion on that issue.

18 similarly situated individuals of a different race were treated

differently.

Here, Teng has not presented any evidence of discriminatory

intent or effect, much less the type of “clear evidence” that

would be required at trial. The only evidence in the record is

that the Danville police declined to charge Teng’s neighbor with

assault because eyewitness accounts tended to corroborate the

neighbor’s allegation that Teng had been the aggressor and that

he had no intent to harm her. None of the witnesses could

corroborate Teng’s allegations to the contrary. Whether the

neighbor and witnesses were telling the truth is not the issue

here. The issue is whether the police had a non-discriminatory

reason for declining to prosecute Teng’s neighbor. And

everything in the record suggests that they had the

quintessential reason for such decisions: a weak case. See

Wayte, 470 U.S. at 607 (noting that “the strength of the case” is

a legitimate factor to consider in deciding whether to

prosecute); United States v . Magana,

, 9 (1st Cir.

1997) (same). Indeed, Teng’s objection raises little, if any,

dispute on this claim.15 Summary judgment is therefore

appropriate.

"Document no. 25, ¶ 5.

19 V. Conclusion

For the reasons set forth above, the defendants’ motions for

summary judgment16 are GRANTED. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph N. Laplante .ited States District Judge

Dated: February 1 7 , 2010

cc: Richard C . Mooney, Esq. C . Matthew Cairns, Esq. Beth A . Deragon, Esq. William G. Scott, Esq.

16 Documents n o . 20 and 2 2 .

20