Gibson v. City of Vancouver
| Decision Date | 07 June 2021 |
| Docket Number | CASE NO. C20-6162BHS |
| Court | U.S. District Court — Western District of Washington |
| Parties | JOSEPH GIBSON, Plaintiff, v. CITY OF VANCOUVER, et al., Defendants. |
THIS MATTER is before the Court on the following motions: Intervenor-Defendants Jay Inslee and Bob Ferguson's Motion to Dismiss, Dkt. 29; the City of Vancouver Defendants' Motion for Summary Judgment, Dkt. 31; Plaintiff Joseph Gibson's Motion for Leave to File a Second Amended Complaint, Dkt. 36; Gibson's Motion for a Preliminary Injunction, Dkt. 46; and Gibson's Motion for Leave to Supplement the Declaration in support of his Motion for a Preliminary Injunction, Dkt. 56.
The Court has considered all the materials submitted, and the remainder of the file. Because Gibson cannot establish a specific threat of enforcement or a history of prosecution, he does not have standing. Accordingly, the Defendants' dispositive motions are GRANTED, Gibson's substantive motions are DENIED, and the matter is dismissed.
The parties and the Court are familiar with the factual and procedural history of this dispute through prior, thorough briefing on Gibson's initial motion for a Temporary Restraining Order ("TRO"), Dkt. 6, the Order denying that motion, Dkt. 14, Gibson's Motion for Reconsideration, Dkt. 16, and the Order denying that motion, Dkt. 17.
In short, Gibson alleges he is a Vancouver "street preacher" organizing prayer protests of the Governor's COVID-19 proclamations and guidance. He asserts that the State's COVID-19 restrictions are facially unconstitutional because they target religious activities and that the City of Vancouver selectively targets religious protesters for arrest and prosecution for violating COVID-19 guidelines. Dkts. 1, 15.
On November 30, 2020 he sued the City of Vancouver and its Mayor, Police Chief, City Attorney, and City Manager (hereinafter "City Defendants"), seeking a TRO broadly enjoining them from arresting or prosecuting him based on his position as a leader or organizer of a religious COVID-19 prayer protest he had planned for the following Saturday, December 5, 2020. Dkts. 1, 6.
The Court denied Gibson's motion for a TRO because he did not have standing to assert a pre-enforcement challenge under Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir. 2000), and because he could not establish that he was likely to succeed on the merits of his claims. It also permitted Governor Inslee and Attorney General Ferguson to intervene in the case. Dkt. 14.
Gibson's December 5 event took place at a Vancouver park without incident or arrest. Two days later, Gibson filed an amended complaint, Dkt. 15, and a Motion for Reconsideration, Dkt. 16. The Court also denied that motion, again because Gibson's amended complaint demonstrated he did not have standing and because he could not demonstrate that he was likely to succeed on the merits of his claims. Indeed, his event had taken place without any arrests or citations and he did not have a concrete plan to hold another. Dkt. 28.
Gibson's operative amended complaint asserts that the Governor's various COVID-19 Executive Orders and proclamations are facially unconstitutional because they place greater restrictions on religious gatherings than they do on analogous secular conduct. Dkt. 15, ¶ 1.2. It asserts that the City Defendants "conspired to create a policy specifically designed to suppress and chill anti-lockdown protest by selectively targeting anti-lockdown protest leaders for investigation and enforcement of criminal law." Id. ¶ 4.299.
The State Intervenor-Defendants seek dismissal of Gibson's amended complaint under Fed. R. Civ. P. 12(b)(1), arguing the Court does not have subject matter jurisdiction because Gibson lacks standing and because his claims are moot. They also argue that Gibson has failed to state a plausible claim under Rule 12(b)(6). Dkt. 29.
The City Defendants seek summary judgment on Gibson's claims. They argue that there is no evidence supporting Gibson's conclusory allegations about threats of prosecution, a history of prosecution, or any "selective targeting" of Gibson or any otherreligious protester. Dkt. 31. They assert that Gibson lacks Article III standing as a matter of law.
In response, Gibson seeks leave to amend his Complaint a second time. Dkt. 36. His proposed amended complaint does not add claims or defendants but includes new factual allegations at ¶¶ 4.356-4.387. The new allegations generally reflect Gibson's claim that the Governor's COVID-19 guidance has made him feel like a second-class citizen and has caused the community to express hostility toward him. He alleges he "fears that the Governor will close down all houses of worship and reduce all worship gatherings to groups no larger than five." Dkt. 36, ¶ 4.473. Gibson concedes that he has since held numerous protests like his December 5 event without incident or arrest and that he intends to continue to do so two or three times every month, indefinitely, but his proposed complaint alleges that the restrictions have caused others to refrain from participating. It alleges that "when 99% of humans cease an activity in direct response to a government restriction, the cessation of that activity (i.e. being chilled from doing that activity) is objectively reasonable." Id. ¶ 4.387.
Gibson also renews his request for injunctive relief, seeking this time a Preliminary Injunction precluding all defendants from enforcing COVID-19 restrictions on religious activity on public property or singing outdoors during religious activity. He claims the restrictions are subject to, and cannot survive, strict scrutiny. Dkt. 46 ().
Finally, Gibson moves under Rule 15(d) for Permission to Supplement the Declaration in support of his motion for a preliminary injunction. Dkt. 56. He asks the Court to consider a press release and a newspaper article about the Governor's revised COVID-19 Guidance. It is unclear to which Declaration the motion refers (the Motion for a Preliminary Injunction itself is not accompanied by a Declaration or otherwise supported by new evidence), but Attorney Lee's earlier Declaration, Dkt. 26, attached a similar press release about prior COVID-19 Guidance. The City Defendants and State Intervenor-Defendants correctly point out that a declaration in support of or in opposition to a motion is not a "pleading" under Rule 7(a) and that Rule 15(d) applies only to supplemental pleadings. That conclusion means that a supplemental declaration is not subject to Rule 15(d); it does not mean that such a filing is not permitted. As discussed below, Attorney Lee's Supplemental Declaration does not alter the Court's analysis of the core, threshold issue: standing. But his Motion for permission to file it, Dkt 56, is GRANTED, and the Court has considered the Declaration and its Exhibits, Dkt. 56-1.
The remaining issues are addressed in turn.
The State Intervenor-Defendants seek dismissal of Gibson's claims under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because Gibson's complaint does not present a live case or controversy.
A complaint must be dismissed under Fed. R. Civ. P. 12(b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does not ariseunder the Constitution, laws, or treaties of the United States, or does not fall within one of the other enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional statute. United Transp. Union v. Burlington N. Santa Fe R. Co., No. C06-5441RBL, 2007 WL 26761, at *2 (W.D. Wash. Jan. 2, 2007), aff'd, 528 F.3d 674 (9th Cir. 2008).
The State Defendants argue that Gibson cannot meet his burden to establish that he has Article III standing. Thus, they argue, his claims are not justiciable, and this Court does not have subject matter jurisdiction over them. This issue and these arguments were the subject of the Court's prior Orders denying Gibson's Motions for a TRO, Dkt. 6, and for Reconsideration, Dkt. 16. The Defendants argue, and the Court agrees, that nothing that has occurred in the interim changes the analysis in those Orders.
The threshold question in every federal case, even those seeking injunctive relief, is whether the court has jurisdiction over an actual case or controversy as contemplated by Article III of the Constitution. Warth v. Seldin, 422 U.S. 490, 498 (1975). For this reason, a federal court is obligated to dismiss an action "[i]f [it] determines at any time that it lacks subject-matter jurisdiction." Fed. R. Civ. P. 12(h)(3).
A federal court is presumed to lack subject matter jurisdiction until the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). As the party invoking federal jurisdiction, Gibson bears the burden of establishing this Court's subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To establish Article III standing, a plaintiff must show that he(1) suffered an injury in fact that is (2) fairly traceable to the alleged conduct of the defendants, and that is (3) likely to be redressed by a favorable decision. Id. A plaintiff has standing to sue only if he presents a legitimate "case or controversy," meaning he presents issues that are "definite and concrete, not hypothetical or abstract." Thomas, 220 F.3d at 1139. A plaintiff facing a threat of future injury "has standing to sue if the threatened injury is certainly impending, or there is a substantial risk" that the injury will occur. In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018) (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014))....
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