THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA 9 DANIEL MITCHELL, et al., CASE NO. C19-5106-JCC 10 Plaintiffs, ORDER 11 v. 12 CHUCK ATKINS, et al., 13 Defendants, 14 and 15 16 SAFE SCHOOLS SAFE COMMUNITIES, 17 Intervenor-Defendant. 18
19 This matter comes before the Court on the parties’ cross-motions for summary judgment 20 (Dkt. Nos. 150, 151). Having thoroughly considered the briefing and the relevant record, the 21 Court GRANTS Defendants’ and Intervenor-Defendant’s motion and DENIES Plaintiffs’ motion 22 for the reasons explained herein. 23 I. BACKGROUND 24 Plaintiffs are licensed firearm dealers residing in Washington. (Dkt. No. 1.) In 2019, they 25 brought this suit challenging the constitutionality of section 12 of Washington State Initiative 26 1 Measure 1639 (“I-1639”), which was approved by voters in 2018.1 Section 12 amended 2 RCW 9.41.124, which legalized the in-person sale of rifles and shotguns to nonresidents. 1970 3 Wash. Sess. Laws, ch. 74, § 2 (originally codified at RCW 19.70.020, codified as amended at 4 RCW 9.41.124). Specifically, it narrowed the scope of that permission by removing semi- 5 automatic rifles (“SARs”) from the category of “rifles and shotguns” that legally may be 6 purchased in person by nonresidents. See RCW 9.41.124. Federal law already prohibits in-person 7 handgun sales to nonresidents of a state. 18 U.S.C. § 922(a)(5)(A), (b)(3). Section 12 in effect 8 mirrors that requirement for SARs. Plaintiffs are licensed firearm dealers in the state of 9 Washington and allege that I-1639 is unconstitutional under the Dormant Commerce Clause. 10 II. DISCUSSION 11 A. Legal Standard 12 “The court shall grant summary judgment if the movant shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 14 Civ. P. 56(a). In making such a determination, the Court must view the facts in the light most 15 favorable to the nonmoving party and draw justifiable inferences in that party’s favor. Anderson 16 v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Ultimately, summary judgment is appropriate 17 against a party who “fails to make a showing sufficient to establish the existence of an element 18 essential to that party’s case, and on which that party will bear the burden of proof at trial.” 19 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 B. Standing 21 As a threshold matter, the Court first addresses Defendants’ justiciability argument. (See 22 generally Dkt. No. 151.) Defendants argue that Plaintiffs lack standing to challenge I-1639 23 24 1 I-1639 expanded background checks for gun purchases in Washington, prohibited those under 25 age 21 from purchasing a semi-automatic rifle, and prohibited in-person sales of such rifles to out-of-state purchasers. The constitutional challenge here is to the third provision prohibiting in- 26 person sales of SARs to non-Washington residents (the “Nonresident Sales Provision”). 1 because they have not indicated an intent to violate the statute, nor do they face the specter of 2 prosecution or administrative revocation. (Id.) 3 A plaintiff only has standing to sue if they present a legitimate “case of controversy,” 4 meaning the issues are “definite and concrete, not hypothetical or abstract.” Thomas v. 5 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000). Ripeness and standing 6 overlap by both focusing on whether an injury is “real and concrete.” Id. (quoting Gene R. 7 Nichol, Jr., Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 172 (1987)). When plaintiffs 8 challenge a statute, the standing and ripeness requirements are met if “the plaintiffs face a 9 realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement,” 10 rather than an “imaginary or speculative” threat. Id. (emphasis added). In other words, there must 11 be a “genuine threat of imminent prosecution.” Id. (quoting San Diego County Gun Rights 12 Comm. v. Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996)). “In evaluating the genuineness of a 13 claimed threat of prosecution, [courts] look to whether the plaintiffs have articulated a ‘concrete 14 plan’ to violate the law in question, whether the prosecuting authorities have communicated a 15 specific warning or threat to initiate proceedings, and the history of past prosecution or 16 enforcement under the challenged statute.” Id. (quoting Reno, 98 F.3d at 1126–27). Moreover, 17 “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected 18 with a constitutional interest, but proscribed by a statute, and there exists a credible threat of 19 prosecution thereunder, he should not be required to await and undergo a criminal prosecution as 20 the sole means of seeking relief.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 21 298 (1979). 22 Here, Plaintiffs’ allegations identify a sufficiently definite injury for purposes of standing 23 and ripeness. While the State may not have fashioned specific plans to enforce the challenged 24 law against Plaintiffs, the entire business of selling guns is a “course of conduct” that makes 25 prosecution under Washington’s gun laws a realistic threat. Babbitt v. United Farm Workers Nat. 26 Union, 442 U.S. 289, 298 (1979). This threat can be structurally inferred from RCW 9.41.090 1 which requires a gun-dealer to notify law enforcement each time they want to sell a pistol or 2 semiautomatic assault rifle.2 It is difficult to see how Plaintiffs could sustain a more concrete 3 form of injury without violating the law. The standing and ripeness requirements have therefore 4 been satisfied, and the Court DENIES Defendants summary judgment on this issue. 5 C. Constitutionality of RCW 9.41.124 under the Dormant Commerce Clause 6 The Commerce Clause provides that Congress shall have the power “[t]o regulate 7 Commerce with foreign Nations, and among several states, and with the Indian Tribes.” U.S. 8 Const. Art. 1, § 8, cl. 3. In addition to this express grant of power to Congress, the Commerce 9 Clause has an implicit negative aspect—known as the Dormant Commerce Clause—that 10 “prohibits state laws that unduly restrict interstate commerce.” Tenn. Wine & Spirit Retailers 11 Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019). The Dormant Commerce Clause serves as a 12 bulwark against state programs of “economic protectionism—that is, regulatory measures 13 designed to benefit in-state economic interests by burdening out-of-state competitors.” Int’l 14 Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389, 399 (9th Cir. 2015) (internal citations and 15 quotations omitted).
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA 9 DANIEL MITCHELL, et al., CASE NO. C19-5106-JCC 10 Plaintiffs, ORDER 11 v. 12 CHUCK ATKINS, et al., 13 Defendants, 14 and 15 16 SAFE SCHOOLS SAFE COMMUNITIES, 17 Intervenor-Defendant. 18
19 This matter comes before the Court on the parties’ cross-motions for summary judgment 20 (Dkt. Nos. 150, 151). Having thoroughly considered the briefing and the relevant record, the 21 Court GRANTS Defendants’ and Intervenor-Defendant’s motion and DENIES Plaintiffs’ motion 22 for the reasons explained herein. 23 I. BACKGROUND 24 Plaintiffs are licensed firearm dealers residing in Washington. (Dkt. No. 1.) In 2019, they 25 brought this suit challenging the constitutionality of section 12 of Washington State Initiative 26 1 Measure 1639 (“I-1639”), which was approved by voters in 2018.1 Section 12 amended 2 RCW 9.41.124, which legalized the in-person sale of rifles and shotguns to nonresidents. 1970 3 Wash. Sess. Laws, ch. 74, § 2 (originally codified at RCW 19.70.020, codified as amended at 4 RCW 9.41.124). Specifically, it narrowed the scope of that permission by removing semi- 5 automatic rifles (“SARs”) from the category of “rifles and shotguns” that legally may be 6 purchased in person by nonresidents. See RCW 9.41.124. Federal law already prohibits in-person 7 handgun sales to nonresidents of a state. 18 U.S.C. § 922(a)(5)(A), (b)(3). Section 12 in effect 8 mirrors that requirement for SARs. Plaintiffs are licensed firearm dealers in the state of 9 Washington and allege that I-1639 is unconstitutional under the Dormant Commerce Clause. 10 II. DISCUSSION 11 A. Legal Standard 12 “The court shall grant summary judgment if the movant shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 14 Civ. P. 56(a). In making such a determination, the Court must view the facts in the light most 15 favorable to the nonmoving party and draw justifiable inferences in that party’s favor. Anderson 16 v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Ultimately, summary judgment is appropriate 17 against a party who “fails to make a showing sufficient to establish the existence of an element 18 essential to that party’s case, and on which that party will bear the burden of proof at trial.” 19 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 B. Standing 21 As a threshold matter, the Court first addresses Defendants’ justiciability argument. (See 22 generally Dkt. No. 151.) Defendants argue that Plaintiffs lack standing to challenge I-1639 23 24 1 I-1639 expanded background checks for gun purchases in Washington, prohibited those under 25 age 21 from purchasing a semi-automatic rifle, and prohibited in-person sales of such rifles to out-of-state purchasers. The constitutional challenge here is to the third provision prohibiting in- 26 person sales of SARs to non-Washington residents (the “Nonresident Sales Provision”). 1 because they have not indicated an intent to violate the statute, nor do they face the specter of 2 prosecution or administrative revocation. (Id.) 3 A plaintiff only has standing to sue if they present a legitimate “case of controversy,” 4 meaning the issues are “definite and concrete, not hypothetical or abstract.” Thomas v. 5 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000). Ripeness and standing 6 overlap by both focusing on whether an injury is “real and concrete.” Id. (quoting Gene R. 7 Nichol, Jr., Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 172 (1987)). When plaintiffs 8 challenge a statute, the standing and ripeness requirements are met if “the plaintiffs face a 9 realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement,” 10 rather than an “imaginary or speculative” threat. Id. (emphasis added). In other words, there must 11 be a “genuine threat of imminent prosecution.” Id. (quoting San Diego County Gun Rights 12 Comm. v. Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996)). “In evaluating the genuineness of a 13 claimed threat of prosecution, [courts] look to whether the plaintiffs have articulated a ‘concrete 14 plan’ to violate the law in question, whether the prosecuting authorities have communicated a 15 specific warning or threat to initiate proceedings, and the history of past prosecution or 16 enforcement under the challenged statute.” Id. (quoting Reno, 98 F.3d at 1126–27). Moreover, 17 “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected 18 with a constitutional interest, but proscribed by a statute, and there exists a credible threat of 19 prosecution thereunder, he should not be required to await and undergo a criminal prosecution as 20 the sole means of seeking relief.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 21 298 (1979). 22 Here, Plaintiffs’ allegations identify a sufficiently definite injury for purposes of standing 23 and ripeness. While the State may not have fashioned specific plans to enforce the challenged 24 law against Plaintiffs, the entire business of selling guns is a “course of conduct” that makes 25 prosecution under Washington’s gun laws a realistic threat. Babbitt v. United Farm Workers Nat. 26 Union, 442 U.S. 289, 298 (1979). This threat can be structurally inferred from RCW 9.41.090 1 which requires a gun-dealer to notify law enforcement each time they want to sell a pistol or 2 semiautomatic assault rifle.2 It is difficult to see how Plaintiffs could sustain a more concrete 3 form of injury without violating the law. The standing and ripeness requirements have therefore 4 been satisfied, and the Court DENIES Defendants summary judgment on this issue. 5 C. Constitutionality of RCW 9.41.124 under the Dormant Commerce Clause 6 The Commerce Clause provides that Congress shall have the power “[t]o regulate 7 Commerce with foreign Nations, and among several states, and with the Indian Tribes.” U.S. 8 Const. Art. 1, § 8, cl. 3. In addition to this express grant of power to Congress, the Commerce 9 Clause has an implicit negative aspect—known as the Dormant Commerce Clause—that 10 “prohibits state laws that unduly restrict interstate commerce.” Tenn. Wine & Spirit Retailers 11 Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019). The Dormant Commerce Clause serves as a 12 bulwark against state programs of “economic protectionism—that is, regulatory measures 13 designed to benefit in-state economic interests by burdening out-of-state competitors.” Int’l 14 Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389, 399 (9th Cir. 2015) (internal citations and 15 quotations omitted). 16 To determine whether a law violates the Dormant Commerce Clause, courts “first ask 17 whether it discriminates on its face against interstate commerce.” United Haulers Ass’n v. 18 Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338–39 (2007). If so, the law is 19 invalid unless the state “has no other means to advance a legitimate local purpose.” Id. (citing 20 Maine v. Taylor, 477 U.S. 131, 138 (1986)). If the law is non-discriminatory, however, it violates 21 the Dormant Commerce Clause only if the burden on interstate commerce is “clearly excessive 22 in relation to the putative local benefits.” Sullivan v. Oracle Corp., 662 F.3d 1265, 1271 (9th Cir. 23
24 2 I-1639’s amendments to RCW 9.41.090 provide that a dealer may not deliver a pistol or semiautomatic assault rifle until they have obtained an application from the purchaser, delivered 25 it to the local chief of police or sheriff, and waited the requisite time period without receiving a response. RCW 9.41.090(6)(a)-(c). If the chief of police or sheriff find that the purchaser is 26 ineligible to buy a firearm, they must deny the application. RCW 9.41.090(6)(c). 1 2011) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). This Pike balancing test 2 requires “sensitive consideration of the weight and nature of the state regulatory concern in light 3 of the extent of the burden imposed on the course of interstate commerce.” Raymond Motor 4 Transp., Inc. v. Rice, 434 U.S. 429, 441 (1978). And to prove a Dormant Commerce Clause 5 violation, that burden must be “substantial.” Nat’l Ass’n of Optometrists & Opticians v. Harris, 6 682 F.3d 1144, 1148 (9th Cir. 2012) (citing S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 7 87 (1984)). 8 1. Facial Discrimination Against Interstate Commerce 9 The threshold question under the Dormant Commerce Clause is whether the law is 10 discriminatory on its face. The term “discrimination” has a specific meaning in the Dormant 11 Commerce Clause context: it ‘simply means differential treatment of in-state and out-of-state 12 economic interests that benefits the former and burdens the latter.’” Rocky Mtn. Farmers Union 13 v. Corey, 730 F.3d 1070, 1087 (9th Cir. 2013) (quoting Or. Waste Sys., Inc. v. Dep’t of Envtl. 14 Quality, 511 U.S. 93, 99 (1994)). Mere differential treatment of in-state and out-of-state interests 15 is insufficient to establish discrimination. Rather, there must be some economic benefit to in- 16 state interests or some economic burden on out-of-state interests. City of Phila. v. New Jersey, 17 437 U.S. 617, 624 (1978) (“The crucial inquiry . . . [is] whether [the law] is basically a 18 protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local 19 concerns, with effects upon interstate commerce that are only incidental.”). Indeed, “[t]he central 20 rationale for the rule against discrimination is to prohibit state or municipal laws whose object is 21 local economic protectionism, laws that would excite those jealousies and retaliatory measures 22 the Constitution was designed to prevent.” C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 23 383, 390 (1994). 24 On its face, Section 12 does not trigger this protectionism concern because it neither 25 benefits in-state economic interests nor burdens out-of-state economic interests. Indeed, the 26 statute signifies a burden to Washington economic interests. Conversely, the likely economic 1 beneficiaries of a prohibition on Washington sales to out-of-state buyers are out-of-state gun 2 dealers who would see a corresponding increase in sales at the expense of Washington gun 3 dealers. In other words, the Washington law neither has the potential to excite jealousies or court 4 retaliatory measures. See C & A Carbone, 511 U.S. at 390. Unsurprisingly, Plaintiffs fail to offer 5 evidence creating a genuine dispute on this threshold issue. (See generally, Dkt. No. 150.) 6 Accordingly, the core concern of discriminatory state protectionism under the Dormant 7 Commerce Clause is not triggered and Section 12 is not prima facie discriminatory. 8 2. The Pike Balancing Test 9 Absent facial discrimination, a law need only satisfy the Pike balancing test, under which 10 courts “will uphold the law ‘unless the burden imposed on [interstate] commerce is clearly 11 excessive in relation to the putative local benefits.’” Pike v. Bruce Church, Inc., 397 U.S. 137, 12 142 (1970) (emphasis added). Plaintiffs “bear the burden of proof in establishing the excessive 13 burden in relation to the local benefits.” Nat’l Ass’n of Optometrists & Opticians LensCrafters, 14 Inc. v. Brown, 567 F.3d 521, 528 (9th Cir. 2009). 15 As noted, Plaintiffs fail to put forth evidence showing how the law confers an economic 16 benefit to in-state interests or an economic burden on out-of-state interests. By contrast, I-1639’s 17 noneconomic putative benefits are self-evident.3 Indeed, there are few interests more paramount 18 to state governments than protecting public safety, and especially “the suppression of violent 19 crime and vindication of its victims.” United States v. Morrison, 529 U.S. 598, 618 (2000). To 20
21 3 At the Founding, single-fire muskets had certain democratic properties. A person had to get close to kill you and, in getting close, he typically rendered himself vulnerable to counterattack. 22 It took time to reload, and so one person could not kill dozens in a few seconds. One person, one gun, one shot was not as perfect a system of majority rule as one person, one vote, but the side 23 with the most men often won. Today, technological advancements have made the right to bear 24 arms substantially more dangerous. Washington’s regulation of firearms is just another paradigmatic example of the police power which the Founders reposed in the States. See United 25 States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the 26 suppression of violent crime.”) 1 advance this public-safety interest, the people of Washington, with over 59% of the vote, 2 extended an existing safeguard on handgun sales to SAR sales.4 This decision is more than 3 legitimate—it is compelling. See, e.g., Mance v. Sessions, 896 F.3d 699, 719 (5th Cir. 2018) 4 (federal prohibition on in-person sales of handguns to nonresidents, 18 U.S.C. § 922(a)(3), was 5 “justified by a compelling . . . interest and is narrowly tailored to serve that interest”). 6 The Supreme Court’s recent decision in National Pork Producers Council v. Ross, 598 7 U.S. 356 (2023), supports insulating I-1639 from judicial invalidation. As the Court noted, 8 “preventing state officials from enforcing a democratically adopted state law in the name of the 9 dormant Commerce Clause is a matter of “extreme delicacy,” something courts should do only 10 “where the infraction is clear.” Id. at 1165 (quoting Conway v. Taylor’s Executor, 1 Black 603, 11 634 (1862)). In a plurality opinion, Justice Gorsuch wrote that the fact that California’s new law 12 might shift market share from one set of producers to another did not constitute a sufficient 13 burden on interstate commerce to warrant further judicial scrutiny. Id. at 1166 (See Sotomayor, 14 J., concurring in part) (citing id. at 1164–65 (majority opinion)). Here, as there, any shift in the 15 economic balances-of-power among gun manufacturers in the SARs market is of no import 16 under Pike. And in any event, even assuming, arguendo, that I-1639 imposes a burden on 17 interstate commerce, this would still fail to offset the substantial benefit to public safety that the 18 people of Washington voted for. 19 Accordingly, the Nonresident Sales Provision is constitutional under Pike. 20 III. CONCLUSION 21 For the foregoing reasons, Plaintiffs’ motion for summary judgment (Dkt. No. 150) is 22 DENIED, and Defendants’ and Intervenor’s cross motion for summary judgment (Dkt. No. 151) 23 is GRANTED. Plaintiffs’ amended complaint (Dkt. No. 17) is DISMISSED with prejudice. 24 4 As explained by Defendants’ law enforcement expert Mark Jones—a former special agent with 25 the Bureau of Alcohol, Tobacco, Firearms and Explosives— “mass shootings . . . are demonstrably more lethal when the assailant uses a [SAR] than when other firearms are used.” 26 (Dkt. No. 89 at pp. 15–16.) 1 2 3 DATED this 23rd day of February 2024. A 4 5 6 John C. Coughenour 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26