The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Plaintiff, Wayne Smith, moves for a preliminary and permanent injunction seeking to enjoin defendants*fn1 from enforcing the United States citizenship requirement of SDCL 23-7-7.1(8) against him. State of South Dakota, Jason Gant in his official capacity as Secretary of State of South Dakota, and Mike Milstead in his official capacity as Minnehaha County Sheriff (hereinafter collectively referred to as defendants) oppose the motion. Because Smith requested both preliminary and permanent injunctive relief, the court consolidated the injunction issue for trial and held an evidentiary hearing with regard to whether defendants should be preliminarily and permanently enjoined from enforcing SDCL 23-7-7.1(8).
Smith emigrated from the United Kingdom to the United States over 30 years ago when he was 15 years old. He has been a resident of the United States since 1979 and is currently a lawful permanent resident of the United States. Docket 1-1. Smith has previously applied for and obtained a permit to carry a concealed weapon in South Dakota. On July 6, 2010, Smith reapplied official capacity as Secretary of State of South Dakota; (3) Chris Nelson (former Secretary of State) in his personal capacity; (4) Mike Milstead in his personal and official capacity as Minnehaha County Sheriff; and (5) Jeff Gromer in his personal and official capacity as deputy sheriff.
Mike Milstead, in his official capacity, is properly before the court because he has answered the original complaint against him in his official capacity. Docket 28. The State of South Dakota and Gant, in his official capacity, are also properly before the court because they have answered the amended complaint. A review of the record reveals that Chris Nelson, in his personal capacity, Jeff Gromer, in his personal and official capacity, and Mike Milstead, in his personal capacity, have not been served, and they have not answered the complaint or amended complaint.
DISCUSSION "The standard for issuing a preliminary or permanent injunction is essentially the same, excepting one key difference. A permanent injunction requires the moving party to show actual success on the merits[.]" Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008) (citations omitted). "If a court finds actual success on the merits, it then considers the following factors in deciding whether to grant a permanent injunction: (1) the threat of irreparable harm to the moving party; (2) the balance of harms with any injury an injunction might inflict on other parties; and (3) the public interest." Id. at 229 (citations omitted).
1. Success on the Merits The statute at issue, SDCL 23-7-7.1, reads as follows: A temporary permit to carry a concealed pistol shall be issued within five days of application to a person if the applicant: (1) Is eighteen years of age or older; (2) Has never pled guilty to, nolo contendere to, or been convicted of a felony or a crime of violence; (3) Is not habitually in an intoxicated or drugged condition; (4) Has no history of violence; (5) Has not been found in the previous ten years to be a "danger to others" or a "danger to self" as defined in § 27A-1-1 or is not currently adjudged mentally incompetent; (6) Has physically resided in and is a resident of the county where the application is being made for at least thirty days immediately preceding the date of the application; (7) Has had no violations of chapter 23-7, 22-14, or 22-42 constituting a felony or misdemeanor in the five years preceding the date of application or is not currently charged under indictment or information for such an offense; (8) Is a citizen of the United States; and (9) Is not a fugitive from justice.
A person denied a permit may appeal to the circuit court pursuant to chapter 1-26.
The only portion of the statute that is at issue is subsection (8), which requires the applicant to be "a citizen of the United States."
Smith is asserting a "facial" challenge and an "as applied" challenge.*fn2 Generally speaking, "a plaintiff can only succeed in a facial challenge by 'establish[ing] that no set of circumstances exists under which the [statute] would be valid[.]' " See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (first alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). See also Wersal v. Sexton, 613 F.3d 821, 831 (8th Cir. 2010) ("Indeed, a plaintiff can [generally] only succeed in a facial challenge by establish[ing] that no set of circumstances exists under which the [law] would be valid." (alterations in original) (internal quotations and citations omitted)).*fn3 During the evidentiary hearing, Smith acknowledged that SDCL 23-7-7.1(8) could be constitutionally applied if the applicant were an illegal alien who otherwise satisfied the statute's remaining requirements. See, e.g., League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005).*fn4 Thus, the facial attack against SDCL 23-7-7.1(8) fails because Smith has failed to demonstrate "that the law is unconstitutional in all of its applications." Wash. State Grange, 552 U.S. at 449 (citation omitted). Therefore, the only remaining issue before the court is whether SDCL 23-7-7.1(8) is constitutional as applied to Smith.
The evidence submitted at the hearing established that Smith has lived in the United States since 1979. He is a lawful permanent resident. Smith was not issued the temporary permit because he failed to satisfy SDCL 23-7-7.1(8).
Generally speaking, states are allowed to enact statutes that discriminate between people based on numerous criteria without violating the Constitution, and such discrimination is reviewed according to the rational basis test. See, e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312-17 (1976) (applying the rational basis test in upholding a state law that required police officers to retire at the age of 50). Under the rational basis test, the burden is on the challenger to establish that the state's actions are not rationally related to a legitimate state interest. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83-84 (2000) (explaining that states "may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest" and placing the burden on the "individual challenging the constitutionality" of the discrimination).
When a state discriminates against a suspect class, however, courts review the discrimination according to the "strict scrutiny" test. Under the strict scrutiny test, a state's discrimination can only be allowed to continue if it "advance[s] a compelling state interest by the least restrictive means available."
Bernal v. Fainter, 467 U.S. 216, 219 (1984). When applying the strict scrutiny standard, the burden is on the state rather than the challenger. See Johnson v. California, 543 U.S. 499, 506 (2005) ("[T]he government has the burden of proving that racial classifications 'are narrowly tailored ...