Hartford v. Ferguson

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA

6 LAWRENCE HARTFORD; DOUGLAS CASE NO. 3:23-cv-05364-RJB 7 MITCHELL; BRETT BASS; SPORTING SYSTEMS VANCOUVER, INC.; ORDER ON KITTITAS 8 SECOND AMENDMENT DEFENDANTS’ MOTION TO FOUNDATION, INC.; AND FIREARMS DISMISS 10 Plaintiffs, v. 11 BOB FERGUSON, in his official capacity 12 as Washington State Attorney General; JOHN R. BATISTE, in his official capacity 13 as Chief of the Washington State Patrol; JOHN GESE, in his official capacity as 14 Sheriff for Kitsap County, Washington; CLAYTON MYERS, in his official 15 capacity as Sheriff for Kittitas County; JOHN HORCH, in his official capacity as 16 Sheriff for Clark County; ADAM FORTNOY, in his official capacity as 17 Sherriff for Snohomish County; CHAD M. ENRIGHT, in his official capacity as 18 County Prosecutor for Kitsap County; GREGORY L. ZEMPEL, in his official 19 capacity as County Prosecutor for Kittitas County; TONY GOLIK, in his official 20 capacity as County Prosecutor for Clark County, JASON CUMMINGS, in his 21 official capacity as County Prosecutor for Snohomish County, and ALLIANCE FOR

23 Defendants.

24 1 This matter comes before the Court on Defendants Gregory L. Zempel, County 2 Prosecutor for Kittitas County, Washington and Clayton Myers, Sheriff for Kittitas County, 3 Washington (collectively “Kittitas County Defendants”) Motion to Dismiss Plaintiffs’ 42 U.S.C. 4 § 1983 and 42 U.S.C. § 1988 Claims and Damages. Dkt. 61. The Court has considered the 5 pleadings filed regarding the motion and the remaining record. Although the motion is not noted

6 for consideration until July 14, 2023, the Plaintiffs have filed a response to the motion (Dkt. 62) 7 and the Kittitas County Defendants have filed a reply (Dkt. 68). The motion being fully briefed, 8 there is no reason to wait for the noting date. 9 In this case, the Plaintiffs challenge a recently enacted Washington State assault weapons 10 regulation, Substitute House Bill 1240 (“HB 1240”), arguing that it violates their constitutional 11 right to bear arms. Dkt. 1. The Kittitas County Defendants, who are named in their official 12 capacities only, now move for dismissal of the Plaintiffs’ 42 U.S.C. § 1983 and 42 U.S.C. § 1988 13 claims, arguing that those claims fail to state a claim upon which relief can be granted. Dkt. 61. 14 As is relevant to the pending motion, Plaintiff Doug Mitchell is a resident of Kittitas

15 County, Washington. Dkt. 1 at 4, 16. The Complaint alleges that Mr. Mitchell intends to 16 continue purchasing semiautomatic rifles which qualify as assault weapons, but due to HB 1240 17 has “been forced to abandon these plans to avoid facing prosecution.” Id. Again, the moving 18 parties are the Kittitas County prosecutor and sheriff. 19 The facts and procedural history of this case are in the June 13, 2023 Order on Kitsap 20 County Defendants’ and Snohomish County Defendants’ Motions to Dismiss (Dkt. 60 at 2-4) 21 and are adopted here. The June 13, 2023 Order dismissed the Plaintiffs’ 42 U.S.C. § 1983 and 22 42 U.S.C. § 1988 claims against the Kitsap and Snohomish County Defendants for failure to 23 state a claim on which relief could be granted. Dkt. 60. That Order noted that the Complaint 24 failed to assert personal participation by any of the Kitsap and Snohomish County Defendants 1 and failed to allege facts that would support a claim pursuant to Monell v. Dept. Social Services 2 of the City of New York, 436 U.S. 658 (1978). Dkt. 60. The June 13, 2023 Order found that 3 amendment of the Complaint to try to state a claim under § 1983 would be futile. Id. The 4 Plaintiffs’ claims for an award of attorneys’ fees under 42 U.S.C. § 1988 as a prevailing party on 5 a § 1983 claim was also dismissed. Id.

6 The Kittitas County Defendants seek dismissal of the Plaintiffs’ §§ 1983 and 1988 claims 7 on the same grounds advanced by the Kitsap and Snohomish County Defendants. Dkt. 61. The 8 relevant law is in the June 13, 2023 Order (Dkt. 60) and is adopted here. The same reasoning 9 applies to the Kittitas County Defendants. The Complaint fails to assert personal participation by 10 any of the named Kittitas County Defendants and the Complaint fails to allege facts that would 11 support a claim pursuant to Monell v. Dept. Social Services of the City of New York, 436 U.S. 12 658 (1978). The Kittitas County Defendants’ motion (Dkt. 61) should be granted and the 13 Plaintiffs’ §§ 1983 and 1988 claims should be dismissed. Dismissal should be without leave to 14 amend.

15 This order does not address the Plaintiffs’ claims against the Kittitas County Defendants 16 pursuant to Ex parte Young, 209 U.S. 123 (1908), if any, for prospective and injunctive relief. 18 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 19 to any party appearing pro se at said party’s last known address. 20 Dated this 29th day of June, 2023. 21 A

22 ROBERT J. BRYAN 23 United States District Judge 24