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Stubbs snubbed in federal court

Brian Stubbs’ lawsuit against the Oregon University System and the state Board of Higher Education for not allowing him to carry a concealed weapon on campus has been flushed from federal court.

US District Judge Aiken ruled that Stubbs had failed to state a claim upon which relief could be granted, known as a Rule 12(b)(6) dismissal.

From a cursory glance at the opinion, the hitch for Stubbs is that the policy was never actually enforced against him — he has yet to be cited or prosecuted for carrying a concealed weapon. Thus, he’s suffered no injury and therefore has no claim. “Plaintiff’s claims are dismissed for failure to present a justiciable ‘case or controversy.'”

In federal court, Stubbs was alleging the state had deprived him of federally protected civil rights. The court’s refusal to consider whether OUS’s policy violates civil rights before the policy is actually enforced is an example of self-imposed prudential restraint. Courts will refrain from questioning a majority-determined legislative act (or its subsidiary regulations and policies) unless and until an individual can demonstrate actual infringement of rights. Stubbs couldn’t demonstrate that; he had voluntarily complied with the policy.

The decision left open the possibility that Stubbs could continue his crusade in state court (or anywhere else he cared to), ruling only that he had failed to raise a federal claim and didn’t belong in federal court.

UPDATE: I just heard about this today, but it turns out the opinion came out way back on June 29. This may be the longest lag time ever for scooping the Ol’ Dirty.

  1. Timothy says:

    All righty, no worry, just curious.

  2. Danimal says:

    He’d at least have a potentially justiciable federal claim. The opinion he got never got to the merits, and I certainly couldn’t give you even a bad answer without a whole lot more research.

  3. Timothy says:

    Would that imply, then, that if Stubbs were to carry his gun onto campus and be prosecuted for it, he might then have a case in federal court? Would that fly?

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