Oregon Firearms Federation, Inc. v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OREGON FIREARMS FEDERATION, et Case No. 2:22-cv-01815-IM (Lead Case)

al., 3:22-cv-01859-IM (Trailing Case)

3:22-cv-01862-IM (Trailing Case)

Plaintiffs, 3:22-cv-01869-IM (Trailing Case)

v.

TINA KOTEK, et al., ORDER GRANTING DEFENDANTS’

MOTION FOR PARTIAL

Defendants. JUDGMENT ON THE PLEADINGS

______________________________________

MARK FITZ, et al.,

Plaintiffs,

v.

ELLEN F. ROSENBLUM, et al.,

Defendants.

______________________________________

KATERINA B. EYRE, et al.,

Plaintiffs,

v.

ELLEN F. ROSENBLUM, et al.,

Defendants.

______________________________________

DANIEL AZZOPARDI, et al.,

Plaintiffs,

v.

ELLEN F. ROSENBLUM, et al.,

Defendants.

______________________________________

IMMERGUT, District Judge.

Before this Court is Defendants’ Motion for Partial Judgment on the Pleadings. ECF 157.

Defendants seek dismissal of any “individual capacity” claims brought against former Governor

Kate Brown, Attorney General Ellen Rosenblum, and former Oregon State Police Superintendent

Terri Davie (collectively “Individual-Capacity Defendants”), by the plaintiffs in Oregon

Firearms Federation v. Brown, No. 2:22-cv-01815-IM, and Eyre v. Rosenblum, No. 3:22-cv-

01862-IM. For the following reasons, this Court GRANTS Defendants’ motion.

The factual background of this consolidated action is set forth in this Court’s prior

Opinion and Order denying Plaintiffs’ Emergency Motion for a Temporary Restraining Order,

ECF 39, and this Court assumes the parties’ familiarity with those facts. Following this Court’s

denial of Plaintiffs’ motions for a temporary restraining order, this Court consolidated the four

related cases challenging the legality of Oregon Ballot Measure 114 (“BM 114”), ECF 62, and

set this matter for an expedited trial on the merits, ECF 139. As part of this Court’s expedited

trial schedule, this Court set May 8, 2023 as the deadline for amendments to the pleadings. Id.

On April 27, 2023, Defendants filed the instant Partial Motion for Judgment on the

Pleadings, seeking dismissal of any “individual capacity” claims brought against former

Governor Kate Brown, Attorney General Ellen Rosenblum, and former Oregon State Police

Superintendent Terri Davie in two of the consolidated cases. ECF 157. Thereafter, before the

close of the amendment period, the plaintiffs in Oregon Firearms Federation (“OFF Plaintiffs”)

filed their Third Amended Complaint. ECF 158. This complaint maintains the OFF Plaintiffs’

individual capacity claims against Individual-Capacity Defendants Kotek, Rosenblum, and

Davie. ECF 158 at ¶¶ 22–24.1 The complaint likewise maintains the OFF Plaintiffs’ claim for

damages. Id. at ¶ 115; id. at 52.2 Plaintiffs in Eyre (“Eyre Plaintiffs”) did not file an amended

complaint before the close of the amendment period. The operative complaint in Eyre seeks

nominal damages against Individual-Capacity Defendants Rosenblum and Davie. ECF 67 at 40.

Though the Eyre Plaintiffs do not specify that they are suing Individual-Capacity Defendants

Rosenblum and Davie in their individual capacity, see id. at ¶¶ 29, 30, such intent is presumed.

Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1284 (9th Cir 1994)

(“Where state officials are named in a complaint which seeks damages under 42 U.S.C. § 1983,

it is presumed that the officials are being sued in their individual capacities.”).

Plaintiffs, in their response, argue that Defendants’ motion is procedurally improper

because it seeks judgment on part of a claim, which Plaintiffs argue is not permitted by Federal

Rule of Civil Procedure 12(c). ECF 160 at 3. This Court disagrees with Plaintiffs’ assessment of

1 The Third Amended Complaint substitutes as defendant current Oregon Governor Tina

Kotek for former Oregon Governor Kate Brown. ECF 158 at ¶¶ 1, 22.

2 Though the amended complaint was filed after Defendants’ Partial Motion for Judgment

on the Pleadings, “the claims, factual allegations, and legal arguments did not change in any

material way,” and therefore this Court does not consider Defendants’ motion moot as to OFF

Plaintiffs. McQuinston v. City of Los Angeles, 564 Fed. Appx. 303, 305 (9th Cir. 2014).

the motion; the motion seeks judgment of all claims against Defendants in their individual

capacities. See generally ECF 157. The cases that Plaintiffs cite to support their argument,

moreover, do not address situations where defendants are sued in both individual and official

capacities. See, e.g., Kenall Mfg. Co. v. Cooper Lighting, LLC, 354 F.Supp.3d

877, 896 (N.D. Ill. 2018) (denying Rule 12(c) motion as to liability but not damages in a

trademark infringement case); United States v. Real Prop. & Improvements Located at 2366 San

Pablo Ave., Berkeley, California, 2013 WL 6774082, at *1–2 (N.D. Cal. Dec. 23, 2013) (denying

Rule 12(c) as to the issue of forfeitability). In this district, by contrast, courts have granted partial

judgment on the pleadings for claims against defendants in their individual capacity where the

pleadings fail to support such a claim. See Woodroffe v. Oregon, No. 2:12–cv–00124–SI, 2013

WL 1814887, at *2–3 (D. Or. April 29, 2013) (dismissing claims brought under § 1983 against

various defendants in their individual capacity on a Rule 12(c) motion).

This Court finds that Defendants are entitled to partial judgment on the pleadings because

the OFF and Eyre Plaintiffs have failed to allege personal involvement by the Individual-

Capacity Defendants in any alleged constitutional violations. A supervisor may be liable under

§ 1983 only if (1) he or she is personally involved in the constitutional deprivation, or (2)

sufficient causal connection exists between the supervisor’s wrongful conduct and the

constitutional violation. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001). Neither the

Eyre nor OFF Plaintiffs’ complaints contain any allegations regarding Individual-Capacity

Defendants’ conduct beyond conclusory statements regarding their “supervision, direction, and

control.” See ECF 67 at ¶¶ 29, 30; ECF 158 at ¶¶ 22, 23, 24. Neither complaint alleges, with any

specificity, the individuals over whom Individual-Capacity Defendants exercise this supervision,

direction, or control. See ECF 67 at ¶¶ 29, 30; ECF 158 at ¶¶ 22, 23, 24. Nor do the complaints

allege any causal connection between this supervision, direction, or control and the deprivation

of a constitutional right. See ECF 67 at ¶¶ 29, 30; ECF 158, ¶¶ 22, 23, 24. These allegations are

thus too conclusory to support a claim for supervisory liability. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (explaining that a court is “not bound to accept as true a legal conclusion

couched as a factual allegation” (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007))); see also Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (finding conclusory

allegations that a defendant “promulgated unconstitutional policies and procedures which

authorized the particular conduct . . . and thus directly caused [another defendant’s] allegedly

unconstitutional conduct” were insufficient to state a claim of supervisory liability).

This Court further finds that the Individual-Capacity Defendants are entitled to qualified

immunity. “The doctrine of qualified immunity protects government officials from liability for

civil damages . . . .” Wood v. Moss, 572 U.S. 744, 745 (2014); see also Krainski v. Nev. ex rel.

Bd. of Regents, 616 F.3d 963, 968 (9th Cir. 2010). “Qualified immunity attaches when an

official’s conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” White v. Pauly, 580 U.S. 73, 78–79 (2017) (per curiam)

(internal quotation marks and citation omitted).

This Court finds that there is no binding precedent within the Ninth Circuit that would

have put the Individual-Capacity Defendants on notice that the challenged provisions of BM 114

violated the OFF and Eyre Plaintiffs’ constitutional rights. Nor does this Court find any

established consensus on that issue outside of this jurisdiction. See Gordon v. Cnty. of Orange, 6

F.4th 961, 969 (9th Cir. 2021) (“Ultimately, the prior precedent must be controlling—from the

Ninth Circuit or Supreme Court—or otherwise be embraced by a consensus of courts outside the

relevant jurisdiction.”) (internal quotation marks and citation omitted). No circuit court—Ninth

or otherwise—has considered the issue of large-capacity magazine bans in light of the Supreme

Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

Of the post-Bruen district courts to consider the issue, all but one has held that the bans are

constitutional. See, e.g., Ocean State Tactical, LLC v. State of Rhode Island, No. 22-CV-246

JJM-PAS, 2022 WL 17721175, at *16 (D.R.I. Dec. 14, 2022); Hanson v. D.C., No. 22-2256

(RC), 2023 WL 3019777, at *17 (D.D.C. Apr. 20, 2023); Delaware State Sportsmen’s Ass’n,

Inc. v. Delaware Dep’t of Safety & Homeland Sec., No. CV 22-951-RGA, 2023 WL 2655150, at

*13 (D. Del. Mar. 27, 2023); Bevis v. City of Naperville, Illinois, No. 22 C 4775, 2023 WL

2077392, at *16 (N.D. Ill. Feb. 17, 2023); Herrera v. Raoul, No. 23 CV 532, 2023 WL 3074799,

at *7 (N.D. Ill. Apr. 25, 2023); but see Barnett v. Raoul, No. 3:23-cv-00209-SPM, 2023 WL

3160285, at *11 (N.D. Ill. Apr. 28, 2023).

Nor does this Court find that there is either binding precedent or an established consensus

outside of this jurisdiction that would have put the Individual-Capacity Defendants on notice that

BM 114’s permit-to-purchase scheme clearly violates Plaintiffs’ constitutional rights. As this

Court explained in its prior Opinion and Order, Bruen itself confirmed the constitutionality of

shall-issue permitting regimes. See 142 S. Ct. 2111, 2138 n.9. While the OFF and Eyre Plaintiffs

may still succeed in showing, at trial, that BM 114’s permit-to-purchase scheme operates in such

a way as to render it unconstitutional, this Court does not find that existing case law has “clearly

established” that the scheme violates the Constitution.

Finally, this Court does not find that there is either binding precedent or an established

consensus outside of this jurisdiction that would have put the Individual-Capacity Defendants on

notice that BM 114 violates the OFF and Eyre Plaintiffs’ remaining constitutional claims. The

Ninth Circuit, sitting en banc, rejected facial and as-applied takings challenges to a more

stringent California law governing large-capacity magazines. Duncan v. Bonta, 19 F.4th 1087,

1112 (9th Cir. 2021), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022), and vacated and

remanded, 49 F.4th 1228 (9th Cir. 2022). As this Court previously found, the Supreme Court did

not consider a Fifth Amendment claim in Bruen, leaving the Ninth Circuit’s takings analysis in

Duncan undisturbed. ECF 39 at 34 n.28. Existing precedent therefore would not have put the

Individual Defendants on notice that BM 114, which is less restrictive than the law at issue in

Duncan, would violate Plaintiffs’ constitutional rights.

Accordingly, this Court GRANTS Defendants’ Partial Motion for Judgment on the

Pleadings, ECF 157, and DISMISSES any damages claims against Individual-Capacity

Defendants Kotek, Rosenblum, and Davies with prejudice.

IT IS SO ORDERED.

DATED this 11th day of May, 2023.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge