For the District of Kansas
Stacey D. Prier,
Gary E. Steed,
Case No. 04-1387-JTM
2005 WL 1162929
J. Thomas Marten, Judge.
Memorandum and Order
The plaintiff Stacey Prier was fired from her Sheriff’s Department job after she pled guilty to a municipal court charge of disorderly conduct by fighting. Prier argues that her conviction does not constitute of crime of domestic violence within the meaning of 18 U.S.C. § 922(g). She also contends that her discharge was not prompted by her Municipal Court conviction, but in reality as retaliation for her use of leave under the Family and Medical Leave Act.
present case is the direct successor of earlier litigation, Prier v. Steed , 2004 U.S. Dist. Lexis 5093, No. 03-1446-JTM (D. Kan.
judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show
there is no genuine issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary
judgment, the court must examine all evidence in a light most favorable to the
opposing party. McKenzie v.
resisting a motion for summary judgment, the opposing party may not rely upon
mere allegations or denials contained in its pleadings or briefs. Rather, the
nonmoving party must come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant probative evidence
supporting the allegation. Anderson v. Liberty Lobby, Inc.,
Findings of Fact
Between January 27, 1992 and February 14, 2003, Prier was employed by the Office of the Sedgwick County Sheriff, serving at various times as a Patrol Deputy and as a Deputy assigned to the Judicial Section of the Support Bureau which provides services to the 18th Judicial District Court of Kansas. There was a short interruption of her employment between February and May of 2000, when she temporarily stayed at home with her children. Between 1997 and the time of her termination, Prier primarily served in the “book position,” which was essentially a desk job in the courthouse.
Between the disturbance and her plea, the Sheriff’s Department barred Prier from carrying a firearm, but allowed her to perform duties which did not require the carrying of a firearm.
Prier’s counsel Laverne “Vern” Miller contacted several persons before the plea to see if she would lose her certification. Miller asked only about a general conviction for disorderly conduct, and not the specific charge of disorderly conduct by fighting. Miller spoke with prosecutor Mary McDonald, who agreed to a plea arrangement whereby Prier would plead guilty to disorderly conduct. She told Miller she was certain this plea would not cause Prier to lose her job.
Miller also talked to Sheriff Gary Steed, Attorney Ed Randels and one or more representatives from the Kansas Law Enforcement Training Commission. After visiting with these people, Miller felt comfortable telling Prier to enter into the plea arrangement, and testified that he would not have let her do so if he would have thought that it would jeopardize her certification. Miller testified that he thought he could have won the case if he would have had any concern that a plea bargain would adversely affect Prier’s certification.
about the day of her plea, Prier reported to her supervisor, Captain McKeel
that she had resolved the Municipal Court case by entering a plea to a reduced
charge of disorderly conduct. She told him that she had been told by her
attorney, based upon conversations the attorney had with others,
that her plea should not cause her to lose her law enforcement certification.
At the request of Undersheriff John Green, Captain McKeel obtained a copy of
the court records from the municipal court. At that time, no one informed Prier
there would be any problem with her employment; in fact, the next day she
qualified with her new firearm, and reported to work in uniform on
In late January or early February, Prier first learned that her job was in jeopardy. Captain McKeel told her that he was very disappointed in the fact that Prier had to take off work right after getting back into uniform. He told her he was unhappy about the days she had missed, even though at least some of this time was approved for family and medical leave. Captain McKeel also indicated that he wanted to terminate her due to her disorderly conduct plea.
Prier filed a grievance with the Sheriff’s Civil Service Board, and her termination was upheld by said independent board in a split decision. Prier appealed this decision to the District Court of the 18th Judicial District. Judge Karl W. Friedel upheld the decision of the Sheriff’s Civil Service Board.
Prier has a reputation among the district judges as a very good worker and a decent person.
Conclusions of Law
The Brady Act bars certain persons from possessing firearms, including persons convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 922(g)(9). The statute defines this term in 18 U.S.C. § 921(a)(33), which provides:
Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that --
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless --
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Here, Prier pled guilty to violating the Wichita Municipal Code § 5.24.10 for disorderly conduct by fighting. Section 5.24.010 of the Wichita Municipal Code defines disorderly conduct as follows:
Disorderly conduct is, with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of peace:
(a) Engaging in brawling or fighting; or
(b) Disturbing an assembly, meeting, or procession, not unlawful in its character; or
(c) Using offensive obscene, or abusive language or engaging in noisy conduct, tending to reasonably arouse alarm, anger or resentment in others.
Section 5.24.040 of the Code provides:
Violation of any of the provisions of this chapter constitutes a misdemeanor, and any violation thereof shall be punished by a fine of not more than five hundred dollars, or one year imprisonment, or by both such fine and imprisonment.
The court finds that the Brady
Act prohibits Prier from legally possessing a firearm. The cases cited by the
parties all involve fact situations and local ordinances from other states.
Plaintiff Prier may have been poorly served in the advice she received or in the representations by various persons that a conviction would not prevent her from carrying out her job. But that advice or those representations cannot bind, alter, or limit the clear application of federal law prohibiting the possession of firearms by persons who have pled guilty to a crime of domestic violence.
IT IS ACCORDINGLY ORDERED this 16th day of May, 2005, that the defendant’s Motion for Partial Summary Judgment (Dkt. No. 7) is granted; plaintiff’s Motion for Summary Judgment (Dkt. No. 9) is denied.
J. Thomas Marten, Judge