Sullivan v. Ferguson

• Decision Date: 18 October 2022
• Docket Number: 3:22-cv-05403-DGE
• Parties: GABRIELLA SULLIVAN et al., Plaintiffs, v. BOB FERGUSON et al., Defendants.
• Court: U.S. District Court — Western District of Washington

GABRIELLA SULLIVAN et al., Plaintiffs, v. BOB FERGUSON et al., Defendants.

No. 3:22-cv-05403-DGE

United States District Court, W.D. Washington, Tacoma

October 18, 2022

ORDER GRANTING ALLIANCE FOR GUN RESPONSIBILITY'S MOTION TO INTERVENE AS A DEFENDANT

DAVID G. ESTUDILLO UNITED STATES DISTRICT JUDGE

I INTRODUCTION

This matter comes before the Court on Movant Alliance for Gun Responsibility's (“Alliance”) Motion to Intervene as a Defendant (Dkt. No. 45). The Court has considered the pleadings and hereby DENIES Alliance's motion to intervene pursuant to Federal Rule of Civil Procedure 24(a)(2) but GRANTS Alliance's motion to intervene pursuant to Federal Rule of Civil Procedure 24(b) as detailed herein.

II BACKGROUND

On March 23, 2022, Governor Jay Inslee signed Engrossed Senate Bill 5078 (hereafter “ESSB 5078” or “the Act”), which amended state law to ban the manufacture import, distribution, and sale (or offering for sale) of “large capacity magazines.” Wash. Rev. Code § 9.41.370(1). Large capacity magazines are defined as “ammunition feeding device[s] with the capacity to accept more than 10 rounds of ammunition,” with certain enumerated exceptions. Wash. Rev. Code § 9.41.010(16). Plaintiffs are two individuals (Gabriela Sullivan and Daniel Martin), a federally licensed firearm dealer in King County (Rainer Arms, LLC), and two nonprofit organizations dedicated to Second Amendment advocacy (Second Amendment Foundation (“SAF”) and Firearms Policy Coalition, Inc. (“FPC”)). On June 3, 2022, Plaintiffs filed their first complaint in this action, challenging the constitutionality of the Act under the Second and Fourteenth Amendments. (Dkt. No. 1). On July 1, 2022, Plaintiffs filed their first amended complaint. (Dkt. No. 42.) Plaintiff's 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.) The operative complaint seeks declaratory relief that the Act's ban on the manufacture, distribution, sale, or importation of large capacity magazines violates the 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.

On July 6, 2022, John Gese (“Gese”), Sheriff for Kitsap County, and Chad M. Enright (“Enright”), County Prosecutor for Kitsap County, filed a motion to dismiss Plaintiffs' claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. (Dkt. No. 44.) On August 10, 2022 Patti Cole-Tindall, Interim Sheriff for King County, and Dan Satterberg, County Prosecutor for King County, filed a motion to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(C). (Dkt. No. 62.) These motions remain pending before this Court.

Alliance filed its motion to intervene and accompanying declaration on July 14, 2022. (Dkt. Nos. 45, 46.) Plaintiffs filed their response in opposition to Alliance's motion to intervene on July 25, 2022. (Dkt. No. 54.) That same day, Defendants John R. Batiste, Chief of the Washington State Patrol, and Bob Ferguson, Washington State Attorney General, filed their response supporting Alliance's motion. (Dkt. No. 55.) Defendants Gese and Enright also filed a response to Alliance's motion, stating that they did not object to permitting Alliance to intervene. (Dkt. No. 56.) Alliance filed its reply to Plaintiff's response in opposition to its motion to intervene on July 29, 2022.

III DISCUSSION

Alliance argues that it should be permitted to intervene by right in this case pursuant to Federal Rule of Civil Procedure 24(a)(2). In the alternative, it argues that it should be granted permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). This Court finds Alliance has not met its burden to establish intervention by right, but, using its considerable discretion, grants Alliance's motion for permissive intervention.

A. Intervention of Right

a. Legal Standard

Federal Rule of Civil Procedure 24 is “construed broadly in favor of the applicants.” Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995). Under Federal Rule of Civil Procedure 24(a)(2), a party seeking to intervene as of right must show:

(1) the intervention application is timely; (2) the applicant has a ‘significant protectable interest relating to the property or transaction that is the subject of the action'; (3) ‘the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest'; and (4) ‘the existing parties may not adequately represent the applicant's interest.'

Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (quoting United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004)). There is a presumption “of adequacy when the government is acting on behalf of a constituency that it represents.... Where parties share the same ultimate objective, differences in litigation strategy do not normally justify intervention.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003), as amended (May 13, 2003).

b. Timeliness

Alliance's motion to intervene is timely. To determine whether an intervenor's motion to intervene is timely, “we consider the stage of the proceeding, prejudice to other parties, and the reason for and length of the delay.” Babbitt, 58 F.3d at 1397. First, Alliance's motion was filed at a very preliminary stage of the proceedings. Alliance filed its motion to intervene within six weeks of the filing of Plaintiffs' initial complaint and under two weeks after Plaintiffs filed their amended complaint. (See Dkt. No. 45.) The Court has yet to hold any substantive hearings or make any dispositive rulings. Plaintiffs do not contest that Alliance's motion is timely (see Dkt. No. 54) and multiple defendants support, or do not oppose, such an intervention (see Dkt. Nos. 55, 56). The Ninth Circuit has held that motions to intervene as late as four months after the filing of an initial complaint were timely. See, e.g., Babbitt, 58 F.3d at 1397. Weighing these factors, the Court finds Alliance's motion is timely.

c. Interest and Impairment of Interest

Alliance also has an interest relating to the subject of the proceeding. “A public interest group is entitled as a matter of right to intervene in an action challenging the legality of a measure it has supported.” Id. at 1397 (9th Cir. 1995); see also Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir. 1983) (“we [previously] held that a public interest group was entitled as a matter of right to intervene in an action challenging the legality of a measure which it had supported.”); Prete, 438 F.3d at 954 (“[A] public interest group that has supported a measure (such as an initiative) has a ‘significant protectable interest' in defending the legality of the measure.”).

Alliance submitted a declaration from Renee Hopkins, CEO of Alliance, in support of its motion to intervene. (Dkt. No. 46.) The declaration provides that “Alliance is a nonprofit organization based in Seattle, Washington, that is dedicated to ending gun violence and promoting a culture of gun ownership that balances rights with responsibilities.” (Id. at 1.) It also asserts Alliance “spent more than six years working to enact the restrictions on large-capacity magazines (‘LCM') that ultimately were contained in Engrossed Senate Bill 5078” and that the organization “was the primary organizer of public support for passage of ESSB 5078.” (Id. at 2-3.)

Plaintiff does not directly challenge whether Alliance has a significant interest related to the subject of this case. We are persuaded based on the assertions put forward in Alliance's Declaration and this Circuit's precedent that Alliance has a significant protectable interest in defending the Act.

Resolving this action absent Alliance will also impede its ability to protect its interest in the Act. Plaintiffs seek declaratory and injunctive relief from this Court to declare the Act unconstitutional and to enjoin state and local officials from enforcing it. Resolution of this action will thus directly impact Alliance's interest in the Act. See, e.g., Prete, 438 F.3d at 954 (noting that an “adverse court decision” against a measure that a public interest group has supported may “impede or impair” their interest in that measure).

d. Adequate representation

Alliance, however, fails to meet its burden to establish that the existing parties to this suit do not adequately represent Alliance's interests.

To determine whether a party's interests are adequately represented, we must examine

(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor's arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.

Arakaki, 324 F.3d at 1086. In this Circuit, intervenors must also overcome a presumption of adequacy where the intervenors and existing parties “share the same ultimate objective.” Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 898 (9th Cir. 2011). This assumption also applies where ‘“the government is acting on behalf of a constituency that it represents.'” Id. (quoting Arakaki, 324 F.3d at 1086). Intervenors must make a “compelling showing” to overcome this presumption of adequacy. Citizens for Balanced Use, 647 F.3d at 898.

As a preliminary matter, Alliance asserts the Ninth Circuit's presumption of adequacy of representation does not apply. (Dkt. No. 45 at 10.) Alliance...