GABRIELLA SULLIVAN et al. v. BOB FERGUSON et al.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
October 24, 2022
ORDER DENYING IN PART AND GRANTING IN PART MOTIONS TO DISMISS (DKT. NOS. 44, 62)
I INTRODUCTION
This mаtter comes before the Court on multiple defendants’ motions to dismiss (Dkt. Nos. 44, 62) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. For the reasons articulated herein, the Court DENIES in part Defendants’ motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted and GRANTS dismissal as to Plaintiffs’ claims brought pursuant to
II BACKGROUND
Plaintiffs bring suit challenging the constitutionality of Engrossed Senate Bill 5078 (hereafter “ESSB 5078” or “the Act“). (Dkt. No. 42.) The Act amends state law to outlaw the manufacture, import, distribution, and sale (or offering for sale) of “large capacity magazines.”
Plaintiffs are two individuals (Gabriella Sullivan and Daniel Martin), a federally licensed firearm dealer in King County (Rainer Arms, LLC (“Rainier Arms“)), and two nonprofit organizations dedicated to Second Amendment advocacy (Second Amendment Foundation (“SAF“) and Firearms Policy Coalition, Inc. (“FPC“)). Ms. Sullivan is a resident of Kitsap County, Washington. (Id. at 3.) Mr. Martin resides in Grays Harbor County, Washington. (Id.) Rainier Arms is located within the city of Auburn1 in King County,
Plaintiffs’ complaint is lodged against eight state and local officials in their official capacities, including the Washington State Attorney General Bob Ferguson. (Dkt. No. 42 at 1.) Plaintiffs do not allege that any of the Defendants have enforced the Act against them. Instead, Plaintiff bring a pre-enforcement challenge to the Act seeking declaratory relief that the Act‘s prohibition on the sale, manufacture, distribution, or importation of large capacity magazines violates thе Second and Fourteenth Amendments to the United States Constitution, injunctive relief against the named defendants and their agents to prevent them from enforcing the Act, monetary damages, and other equitable or legal remedies. (Id. at 17-18.)
Pending before the Court are two motions to dismiss (Dkt. Nos. 44, 62) filed by county officials for Kitsap County and King County. On July 6, 2022, John Gese (Sheriff for Kitsap County) and Chad M. Enright (County Prosecutor for Kitsap County) (together the “Kitsap County Defendants“) filed a motion to dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction and for failure to state a claim. (Dkt. No. 44.) Defendants Patti Cole-Tindall (Interim Sheriff for King County), and Dan Satterberg (County Prosecutor for King County) (together the “King County Defendants“) filed their motion to dismiss on similar grounds on August 10, 2022. (Dkt. No. 62.) Plaintiffs filed timely responses to these motions to dismiss (Dkt. Nos. 53, 64) and the King County Defendants and Kitsap County Defendants filed timely replies to these responses (Dkt. Nos. 58, 65).
III DISCUSSION
Defendants raise two primary arguments as to why the Court should grant their motions to dismiss: 1) both sets of defendants argue Plaintiffs lack standing; and 2) have not properly pled a
A. Legal Standard
Federal courts are “courts of limited jurisdiction.” 5B ARTHUR R. MILLER ET AL., FEDERAL PRACTICE & PROCEDURE § 1350 (3d ed. 2022). “Article III [of the Constitution] confines the federal judicial power to the resolution of ‘Cases’ and ‘Controversies.‘” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). “A federal court is presumed to lack subject matter jurisdiction until [a] plaintiff establishes othеrwise.” Harborview Fellowship v. Inslee, 521 F. Supp. 3d 1040, 1046 (W.D. Wash. 2021); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“The party invoking federal jurisdiction bears the burden of establishing these elements.“).
B. Standing
Plaintiffs have sufficiently established that they have standing as against both the King and Kitsap County Defendants.
“One element of the case-or-controversy requirement is that . . . [plaintiffs] based on their complaint, must establish that they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 816 (9th Cir. 2017) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). The injury in fact must be “concrete and particularized” and “actual or imminent.” Lujan, 504 U.S. at 560. “[T]he presence of one party with standing is sufficient to satisfy Article III‘s case-or-controversy requirement.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 53 n.2 (2006). However, in cases with multiple defendants, plaintiffs need to establish that at least one plaintiff has standing as against each defendant. See McCarron v. Cnty. of Ventura, No. CV 21-5234 MWF (PDX), 2021 WL 9315371, at *3 (C.D. Cal. Dec. 29, 2021). Because we find that at least one plaintiff has established standing as against each of the King and Kitsap County Defеndants, we need not address standing as to each Plaintiff.
a. King County Defendants
Plaintiff Rainier Arms has sufficiently alleged that it has standing as against each of the King County Defendants.
First, Rainier Arms has sufficiently alleged that it suffered an injury in fact. “Economic injury caused by a proscriptive statute is sufficient for standing to challenge that statute.” Montana Shooting Sports Ass‘n v. Holder, 727 F.3d 975, 979 (9th Cir. 2013); see also Craig v. Boren, 429 U.S. 190, 194 (1976) (holding that a party faced with the choice of adhering to a statute that causes them economic loss or disobeying the statute and risking government sanctions has “establish[ed] the threshold requirements of a ‘cаse or controversy’ mandated by Art. III“); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir. 2004) (affirming that legislation that discouraged patients from visiting a doctor for reproductive services such as abortions constituted a financial
The King County Defendants assert that Rainier Arms failed to articulate “a concrete plan to violate the law,” which they view as fatal to any pre-enforcement challenge to the Act. (Dkt. No. 62 at 7.) But “[w]hen such tangible economic injury is alleged, we need not rely on the three-factor test [to determine whether there is a concrete fear of prosecution] applied in Thomas and San Diego Guns, for the gravamen of the suit is economic injury rather than threatened prosecution.” Nat‘l Audubon Soc‘y, Inc. v. Davis, 307 F.3d 835, 855 (9th Cir.), opinion amended on denial of reh‘g, 312 F.3d 416 (9th Cir. 2002) (emphasis added). Rainier Arms‘s ongoing economic injury is sufficient to establish that they have suffered an injury in fact.
Rainier Arms‘s injury in fact is also sufficiently traceablе to the King County Defendants and is likely to be redressed by action from this Court. That state officials are entrusted with the enforcement of state criminal laws and have the actual power to enforce allegedly unconstitutional laws is sufficient to demonstrate “the requisite causal connection for standing purposes.” Wasden, 376 F.3d at 920. Wasden is controlling here. In Wasden, a Boise-based physician and Planned Parenthood of Idaho sought declaratory and injunctive relief from anti-abortion laws passed by the Idaho state legislature prior to thеir actual enforcement. 376 F.3d at 915. Plaintiffs in the case named the Attorney General of Idaho and the Ada County Prosecuting Attorney, the county in which Boise is located, as defendants. Id. at 914. The Idaho Attorney General and Ada County Prosecuting Attorney argued that the Plaintiffs did not have standing as against them. Id. at 919. The Attorney General specifically argued that they lacked enforcement authority to prosecute the physician under the Idaho abortion law.2 Id. The Ninth Circuit rejected this argument and held that the fact that the Attorney General had the power to “stand in the role of a county prosecutor, and in that role exercise the same power to enforce the statute the prosecutor would have” was sufficient to satisfy the causation and redressability prongs of the standing analysis. Id.
The King County Defendants’ traceability arguments are similarly unavailing. The King County Defendants argue that any injury in fact suffered by Rainier Arms is not traceable to them as they are not “primarily responsible for investigating and prosecuting gross misdemeanors in the City of Auburn, where Plaintiff Rainier Arms is located.” (Dkt. No. 65 at 2.) As they explain, under state law the primary responsibility for enforcing the Act “would fall to the Auburn Police Department, not the King County Sheriff‘s Office” and “prosecution of misdemeanors
As in Wasden, Plaintiffs seek pre-еnforcement declaratory and injunctive relief from an allegedly unconstitutional state law. Plaintiffs sue the King County Defendants in their official capacities “as enforcement agents of the state.” (Dkt. No. 64 at 9.) And these officials have the authority to enforce the Act, even if they are not primarily charged with doing so. “A causation chain does not fail simply because it has several ‘links,’ provided
The Court also finds that Rainier Arms‘s injury is redressable. Rainier Arms‘s economic injuries stem from enforcement of the Act. (Dkt. No. 42 at 15.) A court order declaring the Act unconstitutional or enjoining the King County Defendants from enforcing the law would permit Rainier Arms to resume the sale of large capacity magazines.
As such, Rainier Arms has plausibly alleged that it has standing as against the King County Defendants and the Court properly has jurisdiction to hear all of the Plaintiffs’ claims against them.
b. Kitsap County Defendants
Plaintiff Sullivan has sufficiently alleged that she has standing to bring her claims for declaratory and injunctive relief as against the Kitsap County Defendants.
Ms. Sullivan, a resident of Kitsap County, alleges that it is her “present intention and desire to purchase” large capacity magazines but she is unable to do so because “the existence of the Act, and Defendants’ enforcement of it, has extinguished the legal market for those items in Washington, and made it unlawful for Ms. Sullivan to import them herself.” (Dkt. No. 42 at 13-14.) These allegations sufficiently establish that Ms. Sullivan has standing as against the Kitsap County Defendants.
The Kitsap County Defendants assert that Ms. Sullivan has not asserted a concrete injury in fact, which they argue is required to bring a pre-enforcement challenge to the Act. (See Dkt. No. 44 at 4-5.) However, Ms. Sullivan has not pled merely “someday” intentions. (See id. at 5.) She has alleged that she has been injured by the destruction of the legal market for large capacity magazines in Washington and, but for the Act and threat of prosecution, she would purchase or import these magazines for herself. (Dkt. No. 42 at 14.) Ms. Sullivan “need not claim a specifiс intent to violate the statute” to have properly alleged an injury in fact. Wasden, 376 F.3d at 917. As the Ninth Circuit established in Jackson v. City & Cnty. of San Francisco, 746 F.3d 953 (9th Cir. 2014), ongoing deprivation of an alleged legally protected interest, her Second Amendment rights, is sufficient to constitute an injury in fact. Id. at 967.
The Kitsap County Defendants argue that Jackson is inapplicable here and try to distinguish the case on its facts. They argue, in effect, that the Ninth Circuit in Jackson did not conduct an analysis of whether the Jackson plaintiffs had sufficiently articulated a concrete plan to violate San Francisco‘s ordinance banning hollow point ammunition and instead focused on “whether being required to travel out of tоwn to purchase a prohibited type of ammunition is sufficient for a plaintiff to establish an injury.” (Dkt. No. 58 at 3.) In fact, the Ninth Circuit explicitly noted that “the injury Jackson alleges is not the inconvenience of leaving San Francisco; rather, she alleges that the Second Amendment provides her with a ‘legally protected interest,’ to purchase hollow-point ammunition, and that but for section 613.10(g), she would do so within San Francisco.” Jackson, 746 F.3d at 967 (citation omitted); see also Wasden, 376 F.3d at 917 (noting that whether the Plaintiff “continues to perform abortions subject to the statute, desists from performing them to avoid the statute‘s penalties, or violates the statute so as to practice his profession in accord with his medical judgment, his liberty will be concretely affected.“) (emphasis added). We agree with Plaintiffs that Ms. Sullivan‘s alleged injury is similar to the Plaintiff in Jackson and that Jackson
Ms. Sullivan‘s injury in fact is also traceable to the Kitsap County Defendants and redressable by this Court for the same reasons discussed in our analysis of Rainier Arms‘s standing as to the King County Defendants.
C. Ex parte Young Claims
We also find that the King and Kitsap County Defendants are not immune from suit pursuant to the Eleventh Amendment. Standing is not the only jurisdictional bar that may preclude the Court from hearing Plaintiffs’ claims. The Eleventh Amendment “has been ‘construed to prohibit federal courts from entertaining suits brought by a state citizen against the state or its instrumentality in the absence of consent.‘” Mecinas v. Hobbs, 30 F.4th 890, 903 (9th Cir. 2022) (quoting Culinary Workers Union, Loc. 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999)). Ex parte Young provides an exception to state sovereign immunity by permitting parties to sue state officials in their official capacity for рrospective injunctive and declaratory relief from unconstitutional state laws so long as there is some connection between the officer and enforcement of the allegedly unconstitutional act. See Ex parte Young, 209 U.S. 123, 157, (1908). “Actions under Ex parte Young can be brought against both state and county officials.” Moore v. Urquhart, 899 F.3d 1094, 1103 (9th Cir. 2018).
The Ninth Circuit has regularly combined the analysis required for the second and third prongs of standing with tests assessing the appropriateness of state officials for suit under Ex parte Young. See, e.g., Mecinas, 30 F.4th at 903 (noting that “[t]he question of whether there is the requisite ‘connection’ between the sued official and the challenged lаw implicates an analysis that is ‘closely related—indeed overlapping’ with the traceability and redressability inquiry” of standing); Wasden, 376 F.3d at 919 (“Whether these officials are, in their official capacities, proper defendants in the suit is really the common denominator of two separate inquiries: first, whether there is the requisite causal connection between their responsibilities and any injury that the plaintiffs might suffer, such that relief against the defendants would provide redress . . . and second, whether our jurisdiction over the defеndants is proper under the doctrine of Ex parte Young.“); Culinary Workers Union, 200 F.3d at 619. As Wasden illustrates, the ability to enforce an allegedly unconstitutional law, even if shared concurrently with another party, is sufficient to establish the requisite connection for relief pursuant to Ex parte Young. Wasden, 376 F.3d at 920; see also Ent. Software Ass‘n v. Blagojevich, 469 F.3d 641, 645 (7th Cir. 2006) (holding that the Illinois Attorney General‘s concurrent prosecutorial authority was sufficient to establish the requisite connection for Ex parte Young, even where the Attorney General did not ordinarily prosecute regular criminal cases).
The King County Defendants’ argument that any such Ex parte Young claim against them is improper because they оnly have a “generalized duty” to enforce the law is at odds with precedent in the Ninth Circuit. (Dkt. No. 65 at 7.) The King County Defendants cite to Wasden for the proposition that a state official must have a “fairly direct” connection to enforcement of a state statute. (See id. at 8.) But, as previously discussed, the Ninth Circuit held in Wasden that a concurrent ability to enforce state law was a sufficient connection for purposes of Ex parte Young. Wasden, 376 F.3d at 920. The King County Defendants also seek to confine the
The King County Defendants appear to concede in their briefing that they possess the authority to prosecute Rainier Arms. They note, for example, that “prosecution of misdemeanors within the city limits of Auburn is primarily conducted by the Auburn City Attorney‘s Office, not the King County Prosecuting Attorney‘s Office.” (See Dkt. No. 62 at 9) (emphasis added). They do not dispute that the King County Defendants possess concurrent authority under the law to prosecute criminal offenses within municipalities such as the city of Auburn. This is a sufficient connection for Rainier Arms to bring a claim against the King County Defendants pursuant to Ex parte Young.
The King County Defendants also challenge whether the Plaintiffs properly pled an Ex parte Young claim. We construe this as a challenge to the adequacy of Plaintiffs’ pleadings pursuant to
The Court notes that while Plaintiffs did not explicitly raise an Ex parte Young claim in their briefing as to the Kitsap County Defendants, the above anаlysis similarly applies. We thus construe Plaintiffs’ complaint as raising a proper Ex parte Young claim against the Kitsap County Defendants, particularly since the Kitsap County Defendants do not disclaim their prosecutorial authority to enforce the Act within Kitsap County.
D. Section 1983 Claims
To the extent that Plaintiffs seek to pursue claims against the Defendants pursuant
In Monell, the Supreme Court held that municipalities and other local authorities were “persons” who could be sued pursuant to
IV CONCLUSION
Accordingly, and having considered the King and Kitsap County Defendants’ motions to dismiss (Dkt. Nos. 44, 62), the briefing of the parties, and the remainder of the record, the Court finds and ORDERS as follows:
- The King and Kitsap County Defendants’ motions to dismiss for lack of subject matter jurisdiction pursuant to
Federal Rules of Civil Procedure 12(b)(1) and12(c) are DENIED. - Additionally, the Court DENIES the King and Kitsap County Defendants’ motions to dismiss for failure to state a claim upon which relief can be granted insofar as they apply to Plаintiffs’ Ex parte Young claims for declaratory and injunctive relief.
- The Court GRANTS the King and Kitsap County Defendants’ motions to dismiss Plaintiffs’ claims based on
42 U.S.C. § 1983 for failure to sufficiently plead a Monell claim.
Dated this 24th day of October, 2022.
David G. Estudillo
United States District Judge