Peoples Rights Organization, Inc. v. Montgomery (142 Ohio App. 3d 443, 2001)

William W. Young, Judge.

Plaintiffs-appellants (collectively “appellants”), Peoples Rights Organization (“PRO”), Big Boys Toys I, Inc., d.b.a. Davis Guns (“Davis Guns”), John Does I, II, and III, and Jane Does I and II, appeal the decision of the Madison County Court of Common Pleas granting summary judgment in favor of defendantappellee, Betty D. Montgomery, Ohio Attorney General (“Attorney General”).

A. FACTS

This case involves a class action suit by appellants to recover the fees charged (“Brady fees”) to conduct background checks (“Brady checks”) for the purchase of handguns. The facts of the case are not in substantial dispute, and they are presented fully after a brief overview of the procedural history.

1. Overview

PRO is a nonprofit organization incorporated in Ohio “dedicated to the rights of law-abiding firearm owners.” Many of its members purchased handguns in Ohio between 1994 and 1998, paying the Brady fee, which they now seek to have refunded. Davis Guns is a federally licensed firearms dealer located in Plain City, Madison County, Ohio, which paid the Brady fee as part of promotional sales. John and Jane Does are Ohio residents and handgun purchasers who seek to remain anonymous. Some of them are PRO members.

Appellants filed a class action suit against the Attorney General seeking a refund of all Brady fees paid by handgun purchasers in Ohio for Brady checks pursuant to the Brady Handgun Violence Prevention Act (“Brady Act”), Section 921 et seq., Title 18, U.S.Code and a subsequent agreement between the Attorney General and the United States Attorney General (“USAG”), which continued the Brady checks after certain provisions of the Brady Act were declared unconstitutional by the United States Supreme Court in Printz v. United States (1997), 521 U.S. 898, 117 S.Ct. 2865, 138 L.Ed.2d 914. The Attorney General assigned the Ohio Bureau of Criminal Investigation and Identification (“BCI&I”) to collect the Brady fee. Appellants alleged that the Brady fee was not authorized by law and infringed upon their rights to bear arms and to due process of law.

Both parties filed motions for summary judgment. The Attorney General argued that charging and collecting the Brady fee to perform Brady checks was legal and not in violation of appellants’ civil rights. The trial court granted the Attorney General’s motion, finding that the Brady fees were authorized. Appellants’ motion was overruled.

2. The Brady Act

The events of this case involve a number of government agencies. The Gun Control Act of 1968 (“GCA”), Sections 921-930, Title 18, U.S.Code, established a detailed federal scheme governing the distribution and sale of firearms. The scheme requires that any person dealing in firearms first obtain a federal license. Section 923. Federal firearm licensees (“FFLs”), such as Davis Guns, must maintain records of their sales and allow the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) to inspect these records. Section 923(g). The scheme includes a prohibition against transferring handguns to, and the possession of firearms by, certain listed classes of persons. Sections 922(b), (d), and (g).

Congress amended Title I of the GCA effective November 30, 1993, with the Brady Act, Pub.L. 103-159,107 Stat. 1536. The Brady Act put into place interim provisions for a national background check system, Section 922(s), and required that the USAG establish a permanent national instant background check system by November 30, 1998. Section 922(t)(l). The Brady Act’s interim system implemented a mandatory background check, the Brady check, and a five-day waiting period for the purchase of a handgun. Section 922(s)(l)(A)(ii). The permanent instant background check system requires no waiting period. Section 922(t)(l).

As noted by the trial court, under the interim provision, a FFL who proposed to transfer a handgun had to:

“(1) receive from the transferee/buyer (‘buyer’) the 'form prescribed by Section 922(s)(3) (‘Brady form’), containing the name, address, and date of birth of the buyer, along with a sworn statement that the buyer is not among any of the classes of prohibited purchasers, Section 922(s)(l)(A)(i)(I);

“(2) verify the identity of the buyer by examining an identifying document, Section 922(s)(l)(A)(i)(II); and

“(3) provide the ‘chief law enforcement officer’ (‘CLEO’) of the buyer’s residence with a notice of the contents and a copy of the Brady form. Section 922(s)(l)(A)(i)(III)-(rV).” (Footnotes added.)

Other than listed exceptions, the FFL was required to wait five business days before consummating the sale unless the CLEO earlier notified the FFL that there was no reason to believe that the sale would be illegal. Section 922(s)(1)(A)(ii). There were significant alternate methods of completing a handgun sale, including where the buyer possessed a state handgun permit issued after a state background check, Section 922(s)(1)(C), and where state law provided for an instant background check. Section 922(s)(1)(D).

If a particular state, like Ohio, did not have in effect one of these alternatives applicable to all handgun buyers, CLEOs performed specific duties regarding Brady checks. Sections 922(s)(2) and (6). Thus, unless a state already had a system for approving the sale of handguns to prospective buyers, CLEOs were instrumental in administering the Brady Act’s interim system.

When the CLEO received the required notice of a proposed sale from the FFL, the CLEO was to “make a reasonable effort” to ascertain within five business days whether receipt or possession would be illegal, including research in state and local recordkeeping systems and a national system designated by the USAG. Section 922(s)(2). The CLEO was not required to take any particular action if it was determined that a pending sale would be unlawful, but if the CLEO informed the FFL that the prospective buyer was ineligible to receive a handgun, the CLEO had to provide the prospective buyer with a written statement of the reasons for that determination. Section 922(s)(6)(C). If the CLEO did not discover a basis for objecting to the sale, any records in its possession relating to the sale, including the Brady form, were to be destroyed within twenty days. CLEOs could not convey the information in the Brady form to any other person or use it for any purpose other than the Brady check. Section 922(s)(6)(B).

If the CLEO provided erroneous information, resulting in a denial of a handgun application, the denied buyer could “bring an action against the State or political subdivision responsible for providing the erroneous information.” Seetion 925A. CLEOs were specifically exempted from civil liability for performing their duties under the Brady Act. Section 922(s)(7). Under a separate section of the GCA, “[wjhoever knowingly violates subsection (s) or (t) of section 922 [could] be fined not more than $1,000, imprisoned for not more than [one] year, or both.” Section 924(a)(5).

On January 21, 1994, before the Brady Act’s effective date, the Director of the ATF sent an “Open Letter to State and Local Law Enforcement Officials” (“Open Letter”) explaining the Brady Act’s interim requirements. The Open Letter stated that the Brady Act’s primary intent was to “provide law enforcement an opportunity to screen out unlawful purchasers. Our goal is to see that [the] Brady [Act] is as effective as possible at keeping handguns out of the wrong hands.” The Open Letter addressed how the background checks should be performed:

“Each law enforcement agency serving as the CLEO will have to set it [sic] own standards based on its own circumstances, i.e., the availability of resources, access to records, and taking into account the law enforcement priorities of the jurisdiction. The law is designed so that the law enforcement authority who is doing the check [sic], is the one who is most likely to have to deal with the consequences of the buyer obtaining a handgun. Therefore, the CLEO of the buyer’s residence has a vested interest in conducting an appropriate check and ultimately is in the best position to determine what is reasonable.”

The Open Letter concluded by noting that in some situations the only reasonable Brady check would be no check at all, in accordance with circumstances predicted by Sections 922(s)(l)(B)-(F) and by the ATF in its administrative regulations.

3. CLEOs

“CLEO” was defined as “the chief of police, the sheriff, or an equivalent officer or the designee of any such individual.” Section 922(s)(8). The Brady Act gave no express guidance in how a “designee” CLEO was to be appointed or whether only local, not state, law enforcement officers could act as CLEOs. In any case, CLEOs, as the key law enforcement officers administering the interim Brady Act system, were to be state, not federal, officers. As noted by the United States Supreme Court:

“[T]he Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. Regulated firearms [FFLs] are required to forward Brady [fjorms not to a federal officer or employee, but to the CLEOs, whose obligation to accept those forms is implicit in the duty imposed upon them to make ‘reasonable efforts’ within five days to determine whether the sales reflected in the forms are unlawful. While the CLEOs are subjected to no federal requirement that they prevent the sales determined to be unlawful (it is perhaps assumed that their state-law duties will require prevention or apprehension), they are empowered to grant, in effect, waivers of the federally prescribed 5-day waiting period for handgun purchases by notifying gun [FFLs] that they have no reason to believe the transactions would be illegal.” Printz, 521 U.S. at 904-905, 117 S.Ct. at 2369, 138 L.Ed.2d at 925.

The Open Letter also discussed CLEO status:

“While the law [defining ‘CLEO,’ Section 922(s)(8),] is broad enough, in some cases, to give the [FFL] more than one official to contact, we believe the law will clearly permit law enforcement officials to agree that, within a given jurisdiction, one agency will serve the role as CLEO. It is essential that State and local law enforcement officials agree, within a given jurisdiction, that one agency will serve the role of [CLEO], for purposes of which agency should receive the notice of handgun sales.

“We urge you to work with your counterparts on the State and local level to decide who will be the CLEO for your area. Your discussions should also include consideration of the designation of the CLEO for the purposes of the ‘threat to life’ alternative * * * and the ‘multiple sales reportsf.]’ * * * Once you have reached a determination, ATF will be able to inform the [FFLs] when they begin calling us[J ATF’s regulations will make it clear to [FFLs] that they will be required to abide by instructions from State and local officials as to which agency to contact.”

In response to the Open Letter, on February 22, 1994, the Superintendent of the BCI&I (“Superintendent”) sent a letter to every Ohio FFL outlining how the Brady checks were to be conducted. The Superintendent indicated that the Brady checks would be conducted by the BCI&I, setting forth specific procedures. Using a “900” telephone number, each FFL was to call the BCI&I’s Identification Division, which would conduct computerized criminal background checks. There would be a $15-per-call charge (the Brady fee) assessed to the FFL’s telephone bill.

4. Ohio in the Pre-Printz Period

At the time that the Brady Act took effect, Ohio did not have a system of handgun purchase background checks in place. As a result, Ohio was subject to Section 922(s), and the state acted accordingly. One of the first steps in this process was determining who would be a CLEO.

On February 25, 1994, the Ohio Association of Chief of Police, Inc. (“OACP”) sent a letter regarding the Brady Act to its members. Drafted by the OACP President and Todd Wurschmidt, Ph.D., the letter began, “On behalf of our OACP members, we have been involved in gathering a great deal of information and in dialoging with a number of federal and state agencies with regard to the implications of the Brady [Act] for local law enforcement agencies in Ohio.” Regarding who was to act as Ohio’s CLEO and that official’s responsibilities, the letter stated:

“1. Through the efforts of the Attorney General’s Office and BCI&I, Ohio is attempting to establish a central repository for background checks through BCI&I. We have agreed to support the proposal designating BCI&I as Ohio’s central repository. Thus, ATF has notified more than 9,000 [FFLs] to telephone BCI&I with information regarding the request for purchase of handguns.

“2. If an FFL contacts your local agency, you simply need to provide them with the BCI&I (900) number * * *. It is the responsibility of the FFL to comply with the contact to BCI&I.

“4. BCI&I informs us that they understand local law enforcements’ [sic] interest in learning about persons residing in their communities who are either rejected from purchase of handguns or who attempt to purchase multiple handguns. [The] Superintendent * * * informed us of BCI&I’s intentions to address this issue, but does not have specific plans nor a timetable as of yet with regard to providing local law enforcement with feedback on ineligible purchasers or multiple handgun sales. We have written [the] Superintendent * * * requesting specific information * * *.

ii* * *

“5. The Brady [Act] contains a Sunset Provision after five years. The federal statute requires the implementation of a national instant criminal check system. From presentations by representatives of the FBI involved in the design of a national instant criminal background check system, we believe the national system will, in great part, rely on the networking of centralized state systems. We thus feel that with Ohio centralizing our background check process at the outset of the implementation of the Brady [Act], Ohio will be in a position to network with the possible national system to be put in place not later than five years from now.”

This arrangement by which BCI&I acted as Ohio’s CLEO designee was memorialized by the ATF in its Federal Register list of responsible CLEOs. 59 F.R. 37582 (1994). The arrangement was also confirmed in an ATF announcement to Ohio FFLs, which included that “for purposes of the [Brady] Act, the Chief Law Enforcement Officer in Ohio is the Attorney General, State of Ohio. The Attorney General’s designee is the Superintendente.]”

Beginning in March 1994, BCI&I began performing Brady checks. BCI&I performed such background checks until June 27,1997. On that date, the United States Supreme Court decided Printz, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914, and held that Section 922(s)(2), which obligated local law enforcement to perform Brady checks, violated the Tenth Amendment to the United States Constitution. The court reasoned that Section 922(s)(2) imposed on state CLEOs an obligation to administer an unfunded and purely federal regulatory program. Id. at 933, 117 S.Ct. at 2383, 138 L.Ed.2d at 943. Printz effectively extinguished the duties imposed upon CLEOs by Sections 922(s)(1)(A)(i)(III) and (IV) to accept the Brady form submitted by FFLs. Id. at 933-934, 117 S.Ct. at 2384, 138 L.Ed.2d at 943-944.

5. Ohio in the Post-Printz Period

As a result of Printz, law enforcement officials 'had to find other means to perform Brady checks. To that end, the Superintendent sent a letter to Ohio’s FFLs on June 30,1997, setting forth a new plan for Brady checks:

“Over the past forty-eight hours we have worked with the [United States] Justice Department to try to respond to the new decision and the legal problems it causes Ohio particularly. In order for you to comply with the requirements of this federal law, we are working on an interim solution with the Department of Justice to assist you in the least intrusive way possible. The new Ohio Brady plan will take effect on July 1, 1997 and will remain in effect until November 30, 1998 or until the Federal system is implemented (or until a more permanent solution can be achieved).”

Under the new system, buyers would still fill out the Brady form. The buyer could sign a waiver form, which would allow BCI&I to verify the buyer’s criminal record or the lack thereof. This allowed a voluntary Brady check to be done. Both of these forms were to be sent to BCI&I, which would report its findings within two business days. The Brady fee for this system was $13 per check, still charged to the FFL via the “900” telephone number. The intent of this system was to create a method of voluntary Brady checks. The Superintendent’s letter further included:

“In the event the buyer does not wish to sign the waiver form please write ‘REFUSED’ on the applicants signature block and send both forms to BCI&I and we will forward the check to ATF. In this event, as you know, you must wait 5 business days to hear from the ATF before you can sell a handgun. You will be billed $13.00 for the service.

¡¡t * *

“It is our intent to assist you in complying with the federal mandate in a timely, cost effective and the least intrusive way possible. Signing the voluntary consent form coupled with a quick check system should afford you faster customer service while protecting you from possible liability should no record check be sought.” (Emphasis sic.)

At that time, the federal government was encouraging states to voluntarily perform Brady checks as before, continuing the system of involuntary, mandatory checks. In some states, as in Ohio, this posed legal problems. These concerns initiated correspondence between the Attorney General and the USAG negotiating a new Brady check system.

On July 2, 1997, the Attorney General sent a letter to the USAG discussing legal impediments to the BCI&I conducting involuntary Brady checks. The Attorney General wrote:

“Ohio is a Brady state and our General Assembly has not enacted a criminal record check law. Ohio is also unique in that, in 1994, [the Attorney General] entered into an agreement with local law enforcement to be designated [CLEO] for purposes of the Brady Act. This designation allowed the BCI&I, which operates under the Attorney General’s office, to conduct the Brady checks. Prior to the [Printz] decision, BCI&I was able to assume the workload of the Brady checks because the performance of a background check was a ‘mandatory duty’ of all local law enforcement agencies pursuant to statute.

"* * *

“Since the Supreme Court nullified the mandate of Brady on state and local government, there is no longer a duty for CLEOs (or local law enforcement) to conduct Brady checks. Therefore, BCI&I’s handgun background check authority under [R.C.] 109.55 has lapsed.” (Emphasis sic.)

The Attorney General continued that, although states were encouraged to continue involuntary Brady checks, Ohio was “statutorily impeded from complying with this request.” R.C. 109.54, which gives the BCI&I the authority to investigate “criminal activity,” was inapplicable to involuntary Brady checks: “The purchase of a handgun is not a criminal activity,” in light of the fact that 99.5 percent of prospective buyers had no record which would prevent the sale. The Attorney General proposed:

“In the current circumstances, we believe the only legal alternative available to * * * Ohio is a voluntary compliance policy, which we are now implementing. This policy allows gun dealers to obtain a written waiver from the purchaser, thereby allowing BCI&I to conduct a voluntary record check. * * * For those individuals who do not agree to our waiver request, BCI&I will forward their applications to the appropriate federal agency which still retains its authority, under Brady, to conduct their own background check.” (Emphasis sic.)

Although the Attorney General concluded that Ohio was prohibited from conducting involuntary Brady checks, the Attorney General was willing to work with federal authorities to implement a voluntary Brady check system. To this end, the Superintendent sent a letter to the ATF outlining the legal impediments to BCI&I conducting involuntary Brady checks. The Superintendent notified the ATF that, pursuant to Ohio’s new voluntary Brady check policy, BCI&I would forward the Brady forms of those buyers not consenting to state record verification to the ATF for Brady checks.

At this time, appellants’ counsel wrote the Attorney General, contending that the Attorney General and BCI&I never had the authority to conduct Brady checks or charge the Brady fee. On July 14, 1997, the Attorney General responded, asserting that the state agencies did have authority to conduct Brady checks: under the pre-Printz Brady check system, the Attorney General and BCI&I were the agreed-upon CLEO designee; since Printz, Ohio could implement a system of voluntary Brady checks through R.C. 109.57, which allowed records release and verification where the buyer signed a written consent form; where such a consent form was not signed, the Brady form would be sent to federal authorities. The Attorney General maintained that the Brady fees were proper, as R.C. 109.57(E) allowed reasonable fees to be charged for records release and verification.

On July 29, 1997, the USAG opined in a letter to the Attorney General that Ohio law allowed BCI&I to conduct involuntary Brady checks. The Attorney General had Ohio’s State Solicitor review the USAG’s contention. On August 4, 1997, the State Solicitor responded, informing the Attorney General that he disagreed with the USAG’s conclusion:

“The Brady Act, to be sure, initially compelled States to establish an interim system for conducting background checks on their citizens. Yet when the U.S. Supreme Court invalidated this provision of the [Brady] Act in Prints * * *, any requirement that [BCI&I] continue to conduct involuntary background checks fell with it.

“To suggest that the Brady Act nonetheless still ‘authorizes’ [BCI&I] to perform involuntary background checks represents an unhelpful play on words. Either the Brady Act requires Ohio to conduct such checks or it does not. It if does not, as is clearly true after Printz, it is no help to say that the federal government permits Ohio to continue to conduct such checks if authorized under Ohio law. That of course was as true before the Brady Act was enacted as after it — indeed, it is probably true about any conceivable legislative policy. In the last analysis, the only relevant question is whether Ohio law independently permits [BCI&I] to conduct such checks when there is no freestanding federal duty to do so.”

The State Solicitor reviewed several relevant statutes that related to whether BCI&I had the power to conduct Brady checks of any form:

“[R.C. 109.54] no doubt gives [BCI&I] authority to ‘investigate’ any ‘criminal activity’ in the State at the request of local authorities and to ‘aid federal authorities’ in their ‘investigation’ of ‘criminal activity.’ * * * But there has been no showing that across-the-board checks tenably amount to a legitimate ‘investigation’ of ‘criminal activity.’ * * * Under these circumstances, it is hard to maintain that a check on every purchase constitutes an ‘investigation’ of ‘criminal activity,’ at least if those terms are going to continue to have any legitimate content.

“Under Section 109.572, [BCI&I] may conduct checks upon receipt of certain information and in certain circumstances. Accordingly, in some instances, [BCI&I] may conduct the check only after it has received a proper form and fingerprints, see R.C. 109.572(A); and in others, [BCI&I] may conduct the check without the form and fingerprints if authorized by enumerated statutory provisions. See R.C. 109.572(B). But, importantly, every single one of the background checks enumerated in R.C. 109.572(B) relates to checks to determine the background of individuals for prospective employment in areas like child care or elderly adult care. The provision says not a word about authorizing involuntary background checks in other areas generally or in the context of handgun purchases specifically. * * * The legislature’s conspicuous silence about permitting background checks for handgun purchasers, in short, is meaningful and should be respected.

“Still another statute confirms the danger to [BCI&I] of freely commanding Ohioans to submit to involuntary background checks. [R.C.] 109.57 confirms that the background check information collected by [BCI&I] may not be disclosed unless specifically authorized. It says that the confidential records are not ‘public records’ for purposes of [R.C.] 149.43, unless [BCI&I] is specifically authorized to conduct the background check in accordance with the above provisions. As a result, any non-specified release of the information would constitute a violation of [R.C.] 102.03, which prohibits the release of confidential information by State employees, and any non-specified check would constitute a violation of [R.C.] 109.541(C).

"* * *

“The critical problem with the [USAG’s] argument is this: [BCI&I] is, and always has been, a creature of statute. As such, it possesses only those powers given to it by the Ohio General Assembly — more specifically, those set forth in section 109.541 to 109.65 of the Ohio Revised Code. Removing any room for doubt on this score, [R.C.] 109.541 codifies this limiting principle by providing that ‘[n]o state official shall command, order, or direct (a [BCI&I] employee) to perform any duty or service that is not authorized by law.’ R.C. 109.541(C). [BCI&I], in short, needs statutory authorization before it may act, a no-nonsense statutory limit that notions of implied authority [advanced by the USAG] cannot circumvent.

“[BCI&I] likewise must respect all statutory limits on its powers. Quite simply, the agency may not bypass express statutory limits on its power through contentions that it has implied authority to do something else. Under these circumstances, the [USAG’s] reliance on powers and functions of law enforcement officials implied from general grants of authority is misplaced. While there may be instances where law enforcement actions may be taken without specific statutory authorization, this simply is not one of them. In the end, the Ohio General Assembly has defined the instances when background checks my be conducted and has otherwise prohibited the distribution of background information; [BCI&I] officials simply may not take contrary action.

"* * *

“No more persuasive is the repeated suggestion in the [USAG’s] letter that background checks are, or have become, a ‘standard’ and ‘routine’ law enforcement technique. Such a description ignores the long and arduous struggle to enact the federal Brady Act, the variance among states with and without Brady laws, and the public debate surrounding the implementation of such checks. But even assuming for sake of argument that the letter’s characterization of Brady checks is correct, this is only relevant if some legislative authorization or mandate — whether state or federal — still authorizes the checks to be conducted. The frequency with which background checks are conducted does not alter the fundamental question.”

The State Solicitor concluded:

“With respect to background checks, the General Assembly has specifically defined the circumstances under which [BCI&I] may conduct background checks, and has otherwise prohibited the dissemination of background information. Following the passage of the Brady Act in 1993, the General Assembly took no other action to expand this authority in order to implement Brady checks. Instead, [BCI&I] relied solely on the federal requirement to conduct such checks. In the absence of a federal mandate or the passage of an Ohio law authorizing involuntary background checks for handgun purchasers, [BCI&I] may not conduct them.”

The Attorney General immediately conveyed these conclusions to the USAG, attaching the State Solicitor’s memorandum. The Attorney General reiterated the earlier-made proposal:

“[T]here is a way to solve our background check dilemma and strengthen the Brady process. As we discussed last week, I write to propose a federal-state cooperative method for conducting background checks until the federal system is fully operational in 1998. Ohio intends to continue to conduct checks of consenting prospective handgun purchasers. Ohio also intends to continue to forward to the ATF all completed Brady Forms from all non-consenting prospective purchasers. In those instances where an individual has refused to provide a waiver for the background check, Ohio is willing to also forward to the ATF a portion of the fee paid by the purchaser and collected by [BCI&I]. Our hope is that these funds will allow ATF to cover the costs of employing the few additional staff necessary to conduct the checks of non-consenting Ohio purchasers. ATF employees can conduct the checks through access to the Interstate Identification Index (III), which offers ATF precisely the same access to Ohio records that [BCI&I] employees have. If there is a ‘hit’ by an Ohio handgun purchaser, ATF can notify [BCI&I] and [BCI&I] can then conduct a thorough review of all available criminal history information, that is, [BCI&I] will assist federal authorities in the investigation of a criminal activity (a suspected illegal purchase) — an action specifically authorized by Ohio law.

“I can assure you that we understand and sympathize with the desire of the Justice Department and Treasury Secretary Rubin for Ohio to conduct Brady checks. As I have told you from the time the Printz decision was announced, we would be willing to conduct such checks if Ohio law allowed us to do so. Nonetheless, in the absence of that authority, we remain hopeful that our offices can continue to work together to conduct checks within constitutional and statutory parameters.”

The ongoing debate was further memorialized in a September 5, 1997 letter from the Attorney General to the federal Department of Justice Office of Intergovernmental Affairs:

“[W]ithin 72 hours of the [United States] Supreme Court’s action [in Printz ], our office designed a system which allows background checks to be conducted for purchasers who give their consent. * * * Since Ohio law permits our [BCI&I] to conduct background checks upon consent, our solution provided a workable system that was consistent with the unique application of Ohio law. Since then, more than two-thirds of prospective handgun purchasers have given their consent to [BCI&I].

“In [the Attorney General’s letter of August 4, 1997, the] Attorney General * * * went on to propose a federal-state cooperative method for conducting background checks until the overall federal handgun system * * * is fully operational in 1998. * * * In those instances where an individual has refused to provide a waiver for the background check, Ohio would * * * forward to the ATF a significant portion of the fee paid by the purchaser and collected by BCI&I. I have indicated to you in the past that the amount of money forwarded to ATF would likely be in the range of $150,000-$200,000 per year — easily enough money to fund the two full-time ATF employees needed to conduct these checks.

“On August 15, 1997, the United States Justice Department (‘DOJ’) responded [to the Attorney General’s proposal] by offering a proposal whereby Ohio’s [BCI&I] agents would be deputized as federal agents. These [BCI&I]/federal agents would then conduct Brady checks via Ohio’s [BCI&I] system. In response, I explained that simply deputizing State [BCI&I] agents does not provide Ohio with authority to conducts [sic] checks that are not currently allowed under State law. In fact, permitting [BCI&I] agents to accept deputation for purposes unrelated to an investigation of criminal activity would appear to violate the specific mandate of the Ohio General Assembly[.]

“We continue to believe that forwarding to ATF the Brady Forms provided by non-consenting prospective purchasers, along with a fee adequate to cover ATF’s costs to conduct the checks, is the best method for assuring that Brady background checks are conducted in Ohio.” (Emphasis sic.)

The debate over how to conduct Brady checks continued, with Ohio continuing to offer its proposal. As aptly put by the trial court, “[a]s one can suspect, the ATF failed to cooperate.” On February 4, 1998, the Superintendent wrote a letter to Ohio’s FFLs:

“When the U.S. Supreme Court struck down a part of the Brady Act in June of 1997, the State of Ohio found itself in a unique situation. Ohio law permits criminal record information to be released for one of two reasons[:] first for criminal justice purposes, such as an ongoing investigation into suspected criminal conduct; and second, upon the individual authorizing their record to be checked as for pre-employment.”

The Superintendent briefly described the Attorney General’s proposal of voluntary Brady checks, continuing:

“It was later learned that ATF refused to conduct the checks and although over 90% of gun buyers were signing the waivers, [the] Attorney General * * * wanted to be as thorough as possible while following Ohio law. On December 22, 1997, an agreement was reached between [the] Attorney General * * *, the [DOJ], and the Franklin County Sheriffs Office [‘Sheriffs Office’]. Several members of the Sheriffs Office have been designated as federal agents for the purpose of conducting non-waiver Brady checks. This system will ensure that everyone who is required to have a Brady check is screened according to the federal requirement.

“As an FFL * * *, you should notice no difference in your current operation. You are still required to fill out the [Brady form] and contact BCI&I via the 900 phone number/fax number. If the buyer signs the waiver, you may transfer a weapon after two business days. If the buyer does not sign the waiver, you still need to contact BCI&I via the 900 number and BCI&I will then forward the information to [the Sheriffs Office], who will run the check and notify BCI&I of the results within five days. In the event of a denial, BCI&I will notify you within the five day period.

“This program will continue through November of 1998 when the FBI will take over the Brady check program. Please note that for people who consent to [the] waiver, the approval time is two days, while non-waivers remain at five days. The $13 fee remains the same for either check.”

This letter summarized the details of the Attorney General and federal authorities’ agreement to ensure that Brady checks would continue in Ohio.

The agreement was formalized in a “Memorandum of Understanding” (“Memorandum”) executed by the Attorney General, the USAG, and the United States Secretary of the Treasury. The Memorandum included provisions regarding the authority to conduct and the effectiveness of Brady checks:

“5. * * * Ohio law * * * empowers the * * * Attorney General and BCI&I to cooperate with federal and local law enforcement agencies in the investigation of criminal activity. E.g., [R.C.] 109.52, 109.54, 109.62.

“6. Sheriffs also share in broad authority under Ohio law to protect the public from crime through prevention, detection, and investigation.

“8. Cooperation among law enforcement agencies is particularly essential to combating violent crime and gun violence through enforcement of Federal and state laws governing firearm possession. In this regard, both Ohio and Federal law make acquisition or possession of firearms by certain categories of persons, such as convicted felons, a serious felony offense.

“11. The Brady Act has proven effective in keeping guns out of the hands of criminals and others who should not have them. According to [DOJ] surveys, since the Brady Act became effective on February 28, 1994, the background checks of the kind provided for in the [Brady] Act have prevented over 250,000 persons nationwide, including convicted felons, fugitives from justice, individuals subject to domestic violence restraining orders and others in prohibited categories, from illegally obtaining firearms.

“12. In Ohio, the Brady Act likewise has made an important contribution to preventing firearms from being sold to criminals and other prohibited persons. As of January 1, 1997, background checks had blocked nearly 1,000 felons, fugitives and others from illegally obtaining firearms from [FFLs].

“13. In Printz * * *, the United States Supreme Court declared unconstitutional [two] provisions of the Brady Act * * *. However, the decision nevertheless recognized that law enforcement agencies with the authority to do so may voluntarily carry out the Brady Act’s purposes by continuing to conduct * * * background checks. Printz, [521 U.S. at 934], 117 S.Ct. at 2384 [138 L.Ed.2d at 943-944] (majority opinion); see also id. at [936, 117 S.Ct. at] 2385 [138 L.Ed.2d at 945] (O’Connor, J., concurring).”

The memorandum then addressed the new voluntary Brady check system:

“15. The * * * Attorney General has determined that, without the Federal mandate to conduct background checks, [the Attorney General] is prohibited from requiring a background check for certain prospective handgun purchasers because the requisite statutory authority is lacking. * * * [I]n the interest of preventing crime, the * * * Attorney General established a system for conducting background checks on those prospective handgun purchasers who consent in writing to such a check. Currently 90 percent of total handgun purchasers in Ohio are consenting to background checks performed by the * * * Attorney General’s Office. Further, Ohio law does not prohibit county sheriffs from performing background checks on prospective handgun purchasers to prevent crime and enforce Ohio law.

"* * *

“17. For the reasons stated above, the [USAG], the Secretary of the Treasury, the Attorney General * * *, the Franklin County Commissioners and the [Sheriffs Office], pursuant to their lawful authority, agree to and shall effectuate the following arrangements to implement a background check on every prospective handgun purchaser in Ohio.

"* * *

“19. In the interests of advancing public safety and fulfilling the purposes of the Brady Act, * * * the [DOJ] hereby authorizes the [Sheriffs Office] and any appropriate designee thereof * * * to access the Federal NCIC and III databases for purposes of conducting background checks on prospective handgun purchasers who do not consent to a background check performed by the * * * Attorney General.

“20. Until the National Instant Criminal Background Check System * * * becomes operational on or before November 30, 1998, BCI&I shall * * * conduct a background check on each prospective handgun purchaser who consents in writing to such a background check[.]

“21. With respect to any prospective handgun purchaser who refuses to consent in writing to a background check, BCI&I shall immediately forward a copy of the [Brady form] to the [Sheriffs Office].

“22. [T]he [Sheriffs Office] shall immediately perform a background check * * * using all reasonable efforts and all reasonably available means, including, without limitation, the Federal NCIC and III and Ohio LEADS databases; provided, however * * * the [Sheriffs Office] shall not seek access to criminal history records maintained solely in BCI&I databases.

“24. If the [Sheriffs Office] obtains information indicating that a prospective handgun purchaser may be disqualified by Federal or state law from purchasing or possessing a firearm, said Sheriff shall immediately notify BCI&I of this information * * *. Upon confirmation by the [Sheriffs Office] that the Brady Section at BCI&I has received such documentation, the [Sheriffs Office] shall then immediately return to BCI&I any documents still in [its] possession concerning the purchaser or the proposed firearms transaction.

“25. Upon notification from the [Sheriffs Office] * * * that a prospective handgun purchaser may be disqualified * * *, the Brady Section of BCI&I shall, using all reasonable efforts and all reasonably available means, including, without limitation, searches of BCI&I criminal history records, immediately conduct such further and additional investigation as necessaiy to determine whether the proposed firearms transaction may proceed lawfully under Federal or state law.

“26. * * * BCI&I agrees to maintain all of the documentation pertaining to a prohibited firearms transaction indefinitely consistent with the provisions of the Brady Act.

“27. Further, with respect to each proposed transaction for which BCI&I determines that transfer of a firearm to a prospective handgun purchaser would violate Federal law, BCI&I shall, as quickly as possible, make a reasonable effort to notify the [ATF] of the name, address, other identifying information, location of the attempted purchase, and any other information in its possession relevant to the possible Federal offense.

“28. It is expressly agreed and understood that BCI&I, the Franklin County Commissioners, and the [Sheriffs Office] may cease adherence to the terms of this Memorandum * * * at any time.”

Background checks proceeded pursuant to this agreement until the Brady Act’s sunset provision became effective, November 30, 1998. At that time, the Brady Act’s permanent provision, Section 922(t), was activated.

6. Instant Proceedings

On January 12, 1999, appellants filed their instant complaint against Betty Montgomery, both in her official capacity as Attorney General and as an individual. Appellants alleged that the Attorney General had no legal authority to charge the Brady fees. They alleged that the Attorney General deprived handgun purchasers, as a class, of property without due process of law, contrary to the Fourteenth Amendment to the United States Constitution, and that the Brady fees were unlawful exactions. Appellants’ class action claim for a refund of all Brady fees in Ohio was brought pursuant to Section 1983, Title 42, U.S.Code to redress their alleged deprivation of constitutional rights, privileges, and immunities under color of state law.

Appellants alleged that during the Brady Act’s interim system, the Attorney General coerced handgun purchasers and FFLs into paying unlawful Brady fees by requiring FFLs to provide notice of the Brady form to BCI&I through a “900” number at an automatic charge of $15. Appellants alleged that after Printz, the Attorney General coerced FFLs into having prospective handgun purchasers execute a waiver for BCI&I to conduct Brady checks, or .else have the background check done by federal authorities. Under either post-Printz scheme, a $13 Brady fee was charged, and appellants asserted that a failure to pay the Brady fee could not constitute a valid reason to disapprove a handgun transfer. Davis Guns alleged that it was required to make payments between 1994 and 1997 for transmitting Brady forms on behalf of handgun purchasers as promotional sales. ■ Appellants sought repayment of Brady fees paid between February 28,1994 and November 29,1998.

The Attorney General answered, denying that BCI&I was itself a CLEO or that BCI&I was unauthorized to conduct Brady checks. The Attorney General admitted to instructing all Ohio FFLs to submit Brady forms to BCI&I. The Attorney General asserted authority to charge the Brady fee and to establish the “900” telephone number to facilitate Brady fee collection. The Attorney General asserted that after Printz, Brady checks were either done by BCI&I with the buyer’s consent or by federalized sheriffs office deputies, and that the Brady fee charged for these checks was legal.

The trial court certified the class, and a class action notice was distributed. The parties filed extensive motions for summary judgment. On March 1, 2000, the trial court granted summary judgment to the Attorney General in a forty-one-page decision.

The trial court first considered whether the Attorney General qualified as a CLEO under Section 922(s)(8) during the interim Brady Act system. The trial court looked to R.C. 109.02 and the statewide notice sent by the OACP agreeing that the Attorney General was Ohio’s primary CLEO. Based upon these authorities, the trial court concluded that the Attorney General properly acted as Ohio’s CLEO.

The trial court then turned to whether Ohio law authorized the BCI&I to conduct involuntary Brady checks and to charge the Brady fee. The trial court engaged in a thorough discussion of relevant statutes delineating the powers of the BCI&I and the Superintendent: R.C. 109.51, 109.52, 109.55, and 109.57. The trial court found that, with regard to the release of any records maintained by the BCI&I, R.C. 109.57(E) allowed that a “reasonable fee may be charged for this service.” The trial court concluded that the Attorney General had earlier adopted a procedure for requesting criminal records in Ohio Adm.Code 109:5-1-01, and that the Revised Code allowed charging a fee for voluntary records releases. The trial court found that any person complying with the regulation was entitled to access to or a release of their records.

The trial court also considered the statutory duties imposed upon BCI&I, including its duty to cooperate with other law enforcement authorities in coordinating law enforcement work. R.C. 109.55. While Sections 922(s)(2) and (6) were in effect, BCI&I was “under a federal requirement to perform background checks prior to handgun transfers.” The trial court concluded that although the Brady Act did not specifically establish a Brady fee, BCI&I was authorized by Ohio law to charge the fee.

The trial court then turned to the Attorney General’s decision to implement a voluntary Brady check system after Printz. The voluntary “quick check” system was effective only for those individuals who executed a written waiver allowing a record check pursuant to R.C. 109.57. Even though after Printz there was no federal mandate to conduct Brady checks, BCI&I did have authority under Ohio law to conduct purely voluntary Brady checks.

The trial court determined that voluntary waivers were “an appropriate vehicle” by which BCI&I could perform Brady checks. The trial court found that this system did not violate the Second Amendment to the United States Constitution, as that Amendment has yet to be selectively incorporated as effective upon the states. The trial court further concluded that appellants failed to demonstrate that the Brady fees charged under R.C. 109.57(E) constituted an unconstitutional and impermissible taking of property without due process. Appellants appeal and present two assignments of error which we will consider in reverse order.

Assignment of Error No. 2:

“The court erred in holding this claim not actionable undér 42 U.S.C. § 1983.”

Issues Presented for Review:

“A. The court erred in relying on the possibility of post-deprivation procedures, because the deprivation was the predictable result of established state procedures.

“B. The court erred in holding that plaintiffs failed to state a claim for violation of due process.

“C. The court erred in not rejecting defendant’s claim to immunity.”

Appellants contend that the trial court erred in granting summary judgment to the Attorney General as to their Section 1983 claim. Appellants assert that the Brady check system and Brady fee infringed upon their rights and deprived them of property through an established state policy that did not provide a predeprivation state remedy.

B. SUMMARY JUDGMENT

Pursuant to Civ.R. 56(C), the trial court may grant summary judgment where there is no genuine issue as to any material fact. Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346, 617 N.E.2d 1129, 1131-1132. Summary judgment will be granted if reasonable minds could come to but one conclusion, and that conclusion is adverse to the party against whom the motion is made. Id. An issue of fact exists when the relevant factual allegations in the pleadings, affidavits, depositions, or interrogatories are in conflict. Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140, 1144.

In deciding whether there is a genuine issue of material fact, the evidence must be construed in the nonmoving party’s favor, and “the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion.” Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 485, 696 N.E.2d 1044, 1046, citing Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1126-1127. Summary judgment is appropriate where a plaintiff fails to produce evidence supporting the essential elements of his claim. Welco Industries, 67 Ohio St.3d at 346, 617 N.E.2d at 1131-1132.

In determining whether the plaintiff demonstrated the elements of his claim, an appellate court must independently review the record to determine if summary judgment was appropriate. Therefore, an appellate court affords no deference to the trial court’s decision when making its own decision. Beardsley v. Manfredi Motor Transit Co. (1994), 97 Ohio App.3d 768, 769, 647 N.E.2d 555, 556.

C. SECTION 1983 CLAIM

1. Jurisdiction

We first address an issue of jurisdiction raised in the pleadings, but left unresolved by the trial court: whether appellants’ cause of action was required to have been initiated in the Ohio Court of Claims, pursuant to R.C. 2743.02. In Conley v. Shearer (1992), 64 Ohio St.3d 284, 595 N.E.2d 862, the Supreme Court ruled that R.C. 2743.02, which requires that suits against the state or its officers and employees must be instituted in the Court of Claims, is not applicable to Section 1983 claims because such suits are founded in federal, not state, law. Id. at 293, 595 N.E.2d at 869-870, citing Schwarz v. Ohio State Univ. Bd. of Trustees (1987), 31 Ohio St.3d 267, 31 OBR 493, 510 N.E.2d 808, paragraph two of the syllabus. Thus, the trial court did have jurisdiction over appellants’ Section 1983 claim.

2. Statute of Limitations

The Attorney General pled and argued in summary judgment that appellants’ Section 1983 claim was barred by the statute of limitations. The trial court did not decide this issue due to its resolution of the case on other grounds.

The Reconstruction Civil Rights Acts, of which Section 1983 is a progeny, do not contain an explicit statute of limitations, “ ‘a void which is commonplace in federal statutory law.’ ” Wilson v. Garcia (1985), 471 U.S. 261, 266, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254, 260. For that reason, the United States Supreme Court has.looked to practical considerations to conclude that Section 1983 actions confer “a general remedy for injuries to personal rights.” Id. at 278, 105 S.Ct. at 1948, 85 L.Ed.2d at 268. “[Section] 1983 claims are best characterized as personal injury actions” subject to the state “statute of limitations governing actions ‘for an injury to the person or reputation of any person.’ ” Id. at 280, 105 S.Ct. at 1949, 85 L.Ed.2d at 269.

Wilson cleared some confusion regarding the statute of limitations applicable to Section 1983 claims, but it left unresolved what happened if a state had more than one personal injury statute of limitations. This circumstance was resolved in Owens v. Okure (1989), 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594. There the court rejected an argument that the statute of limitations for intentional torts governs Section 1983 actions. The court reasoned that Section 1983 claims take many forms without state law analogy, and comparing them to intentional tort claims “would be inconsistent with [Section] 1983’s broad scope.” Id. at 249, 109 S.Ct. at 581, 102 L.Ed.2d at 605. The court held that “where state law provides multiple statutes of limitations for personal injury actions, courts considering [Section] 1983 claims should borrow the general or residual statute for personal injury actions.” Id. at 249-250, 109 S.Ct. at 582, 102 L.Ed.2d at 606.

This court addressed the effect of Okure in State ex rel. Eckstein v. Midwest Pride IV, Inc. (1998), 128 Ohio App.3d 1, 713 N.E.2d 1055, wherein we reasoned:

“R.C. 2305.09(D) contains a residual statute of limitations; however, it is apparent to this court that R.C. 2305.10 contains the general statute of limitations for personal injury actions. Therefore, we find that the appropriate limitations period to be applied in a Section 1983 action is the two-year period set forth in R.C. 2305.10.” Id. at 14, 713 N.E.2d at 1063.

Midwest Pride IV accorded with the federal courts and other Ohio appellate courts. See id. at 13-14, 713 N.E.2d at 1062-1064. Although some Ohio appellate courts have disagreed, finding that the four-year limitations period in R.C. 2305.09(D) governs Section 1983 actions, see id. at 14, 713 N.E.2d at 1063-1064, the reasoning of these other cases remains unpersuasive in light of the clear mandate of Wilson and Okure and the text of relevant statutes.

Wilson and Okure make clear that although not strictly personal injury claims, Section 1983 actions are most analogous to personal injury suits. Okure, 488 U.S. at 249-250, 109 S.Ct. at 581-582, 102 L.Ed.2d at 605-606; Wilson, 471 U.S. at 278 and 280, 105 S.Ct. at 1948 and 1949, 85 L.Ed.2d at 267-268 and 269.

R.C. 2305.09 provides:

“An action for any of the following causes shall be brought within four years after the cause thereof accrued:

“(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, 2305.14[,] and 1304.35 of the Revised Code.”

R.C. 2305.10 states:

“(A) Except as provided in division (C) of this section [as to product liability claims], an action based on a product liability claim and an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues. Except as provided in divisions (B)(1) to (4) of this section, a cause of action accrues under this division when the injury or loss to person or property occurs.”

R.C. 2305.09 applies to certain enumerated causes of action. It specifically excepts those claims governed by R.C. 2305.10, which include. actions “for bodily injury.” Thus, the general personal injury limitations period is two years, as included in R.C. 2305.10. See Browning v. Burt (1993), 66 Ohio St.3d 544, 558, 613 N.E.2d 993, certiorari denied (1994), 510 U.S. 1111, 114 S.Ct. 1054, 127 L.Ed.2d 375; Gambill v. Bonded Oil Co. (1990), 52 Ohio St.3d 90, 556 N.E.2d 177, syllabus; Richardson v. Doe (1964), 176 Ohio St. 370, 373, 27 O.O.2d 345, 347, 199 N.E.2d 878, 880, and syllabus.

This conclusion is borne out by cases interpreting former Section 11224-1, General Code, which was nearly identical to R.C. 2305.10. That provision stated:

“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

Section 11224-1, General Code, governed “all actipns the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort. The limitation is imposed on the cause of action and the form in which the action is brought is immaterial.” Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, 44 O.O. 72, 97 N.E.2d 549, paragraph two of the syllabus.

The section was “not confined to any particular type of injury, nor does it concern itself with the circumstances under which an injury was inflicted. On its face, it clearly covers all actions based on a claim respecting bodily injury.” Id. at 51, 44 O.O. at 74, 97 N.E.2d at 552. The modern version of the limitations statutes are more detailed and specific, see R.C. 2305.09(A) to (C) and 2305.11, but the effect of R.C. 2305.10(A) is the same as was that of Section 11224-1, General Code: all personal injury actions, except those specifically governed by another statute, are subject to a two-year limitations period.

Cases finding R.C. 2305.09(D) applicable to Section 1983 actions misread the import of the limitations statutes, hinging their analysis upon R.C. 2305.09(D)’s inclusion of the words “injury to the rights of the plaintiff.” See Bojac Corp. v. Kutevac (1990), 64 Ohio App.3d 368, 370-371, 581 N.E.2d 625; Weethee v. Boso (1989), 64 Ohio App.3d 532, 534-535, 582 N.E.2d 19. But these words must be read in light of the full text of subsection (D): “an injury to the rights of the plaintiff not arising on contract nor enumerated in sectio[n] 2305.10.” (Emphasis added.) Personal injury claims subject to R.C. 2305.10 are thus exempt from R.C. 2305.09’s application.

Wilson and Okure held that Section 1983 claims are best characterized as personal injury actions. Bodily injury, or personal injury, actions are specifically governed by R.C. 2305.10. See Browning, 66 Ohio St.3d at 558, 613 N.E.2d at 1004; Gambill at syllabus; Richardson at syllabus and 176 Ohio St. at 373, 27 O.O.2d at 347, 199 N.E.2d at 880. Thus, we reaffirm our holding in Midwest Pride IV that R.C. 2305.10(A), the two-year general personal injury limitations period, governs Section 1983 actions.

Appellants filed their complaint on January 12, 1999. But the initial decision about which they complain — the Attorney General’s decision to charge the Brady fee — was made in 1994. Any complaint attacking the 1994 decision had to be filed in 1996. Appellants did not so file their complaint, and they are statutorily barred from challenging the 1994 decision directly.

Appellants did file their complaint within two years of the 1997 decision by Betty Montgomery to continue to charge the Brady fee. Their complaint was timely as to that 1997 decision. Further, appellants’ complaint could be construed to state a cause of action as to the effect of the 1994 decision: each time a class member was charged the Brady fee prior to Printz could be construed to constitute a possible deprivation of that individual’s rights. Thus, those Brady fees charged under the pre-Printz Brady system on or after January 12,1997 are not time-barred.

Any relief relating to events occurring prior to January 12, 1997 is barred by the two-year statute of limitations in R.C. 2305.10(A). The trial court’s grant of summary judgment as to all events occurring before January 12, 1997 was proper.

3. Personal- and Official-Capacity Claims

Appellants sued Betty Montgomery in both her official capacity as Attorney General and in her personal capacity. In their personal-capacity claim, appellants allege that Betty Montgomery, although acting in her official capacity, is personally liable for violating appellants’ civil rights when ordering the Brady fee to be charged. The official-capacity claim is premised upon the same principle: that the Attorney General’s office acted improperly when charging the Brady fee. But the official-capacity suit seeks to hold the Office of the Attorney General, and thus the state, liable for the alleged illegal conduct. Because there is a distinction between personal-capacity and official-capacity suits, appellants’ ability to maintain these claims must be reviewed.

Personal-capacity suits, sometimes characterized as individual-capacity suits, seek to impose individual liability upon a government officer for actions taken under color of state law. Hafer v. Melo (1991), 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116 L.Ed.2d 301, 309-310. By contrast, an official-capacity suit, wherein a government officer is sued in her official capacity, “ ‘generally represents] only another way of pleading an action against an entity of which an officer is an agent.’ ” Id., quoting Kentucky v. Graham (1985), 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114, 121. For this reason, official-capacity suits are treated as suits against the state itself. Id. at 166, 105 S.Ct. at 3105, 87