Nat'l Rifle Ass'n of Am. v. City of L. A.

441 F.Supp.3d 915

NATIONAL RIFLE ASSOCIATION OF AMERICA et al.

v.CITY OF LOS ANGELES et al.

Case No. 2:19-cv-03212-SVW-GJS

United States District Court, C.D. California.

Filed December 11, 2019

Carl Dawson Michel, Tiffany Dawn Cheuvront, Sean Anthony Brady, Anna M. Barvir, Michel and Associates PC, Long Beach, CA, for National Rifle Association of America.

Anna M. Barvir, Carl Dawson Michel, Sean Anthony Brady, Michel and Associates PC, Long Beach, CA, for John Doe.

Benjamin F. Chapman, Los Angeles City Attorneys Office, Los Angeles, CA, for City of Los Angeles, Eric Garcetti, Holly Wolcott.

Proceedings: IN CHAMBERS ORDER GRANTING PRELIMINARY INJUNCTION [19] AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [15]

STEPHEN V. WILSON, U.S. DISTRICT JUDGE

The National Rifle Association ("NRA") and John Doe (together "Plaintiffs") bring this action for declaratory relief and a preliminary injunction against the City of Los Angles ("City"), Eric Garcetti ("Garcetti") in his official capacity as Mayor of Los Angeles, and Holly L. Wolcott ("Wolcott") in her official capacity as City Clerk (together "Defendants"). Defendants have moved to dismiss the complaint and have opposed the preliminary injunction.

This Court heard oral argument on Defendants' motion to dismiss on August 12, 2019. Dkt. 29. At the hearing, the Court orally denied the motion to dismiss. Dkt. 33. This Order supersedes that denial. Defendants' motion to dismiss is DENIED in part and GRANTED in part. Oral argument on Plaintiffs' motion for preliminary injunction was noticed by this Court for September 9, 2019, but the Court vacated the hearing and took the matter under submission. Dkt. 32. For the reasons stated below, the preliminary injunction is GRANTED.

I. Factual Background

The NRA is a "membership organization" which "provides firearm safety training, recreational and competitive shooting matches ... and school safety programs." Dkt. 19-1 at 1–2. The NRA also engages in extensive political advocacy to promote "its mission to protect the individual right to keep and bear arms ...." Id. The NRA is a national organization with "millions of members residing throughout the United States," and it "relies on member dues, sponsorships, and other contributions from businesses and individuals" to continue its operations. Id. To incentivize and reward membership, the "NRA has a stable of sponsors that range from large corporations offering discounts to members to smaller, local retailers who donate their employees' time ...." Id. Plaintiff John Doe is a business owner in California who has allegedly "maintained contracts with the city of Los Angeles" in the past. Plaintiff Doe is also a "member and supporter of the NRA," and he alleges that he "wishes to continue bidding for and obtaining" City contracts in the future. Id.

On February 12, 2019, the City passed City Ordinance No. 186000 ("Ordinance"), which took effect on April 1, 2019. Dkt. 15 at 2–3. The Ordinance requires "a prospective contractor of the City to disclose all contracts with or sponsorship of the National Rifle Association." Dkt. 1-9 at 1. The Ordinance begins with a preamble discussing the history of the NRA's pro-firearm advocacy and "the increasing number of mass shootings throughout the country ...." See Dkt. 1-9 at 1–2. The Ordinance then continues:

[T]he City of Los Angeles has enacted ordinances and adopted positions that promote gun safety and sensible gun ownership. The City's residents deserve to know if the City's public funds are spent on contractors that have contractual or sponsorship ties with the NRA. Public funds provided to such contractors undermines the City's efforts to legislate and promote gun safety....

Id. at 2. Finally, the Ordinance concludes its preamble by requiring "those seeking to do business with the City to fully and accurately disclose any and all contracts with or sponsorship of the NRA." Id.

Plaintiffs have challenged the Ordinance as an unconstitutional abridgement of their First and Fourteenth Amendment rights. See Dkt. 1. Plaintiff Doe alleges that he is "afraid to come forward to participate" in this action because he "fears retribution from the City and the potential loss of lucrative contracts ...." Dkt. 1 at 3. The NRA alleges that the Ordinance will unjustly cut off "revenue streams necessary for the NRA to continue engaging in protected speech and association" by discouraging membership and stigmatizing business relationships and sponsorships with the NRA. Id. Plaintiff Doe, on behalf of himself of other potential contractors, alleges that his "rights of free speech and association are being chilled, as the Ordinance forces [him] to choose between their political beliefs and placating the City to secure work with the City." Id. at 13. Plaintiff Doe has made this allegation anonymously through the sworn declaration of his attorney. See Dkt. 19-6. Defendants have never contested the sincerity or authenticity of Doe's declaration, and no evidentiary hearing was requested by either party. For the purposes of this motion, the Court accepts the Plaintiffs' factual assertions as true.

II. Legal Standard

a. Preliminary Injunction

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing the plaintiff is entitled to such relief." Winter v. NRDC , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (" Winter "). Under Winter , a plaintiff "must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest." Sierra Forest Legacy v. Rey , 577 F.3d 1015, 1021 (9th Cir. 2009) (applying Winter , 555 U.S. at 29, 129 S.Ct. 365 ) (" Winter factors").

In considering the likelihood of success on the merits, the district court is not strictly bound by the rules of evidence, as the "preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." Univ. of Texas v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Because of the extraordinary nature of injunctive relief, including the potential for irreparable injury if not granted, a district court may consider evidence outside the normal rules of evidence, including: hearsay, exhibits, declarations, and pleadings. Johnson v. Couturier , 572 F.3d 1067, 1083 (9th Cir. 2009). "The purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment on the merits can be rendered." U.S. Philips Corp. v. KBC Bank N.V. , 590 F.3d 1091, 1094 (9th Cir. 2010). "[I]n the First Amendment context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed ... at which point the burden shifts to the government to justify the restriction." Thalheimer v. City of San Diego , 645 F.3d 1109, 1115–16 (9th Cir. 2011).

b. Motion to Dismiss

Under Rule 12(b)(6), a motion to dismiss challenges the legal sufficiency of the claims stated in the complaint. See Fed. R. Civ. P. 12(b)(6). The plaintiff's complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. However, mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Id. ; see also Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

In reviewing a Rule 12(b)(6) motion, a court "must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party." Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am. , 768 F.3d 938, 945 (9th Cir. 2014). Thus, "[w]hile legal conclusions can provide the complaint's framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

c. Constitutional Challenge

The parties contest whether the Plaintiffs have mounted a facial or as-applied challenge to the Ordinance: Defendants argue Plaintiffs are only capable of raising a facial challenge. Dkt. 15 at 5. Plaintiffs assert that they have raised both a facial and as-applied challenge. Dkt. 24 at 5.

To assert an as-applied challenge in the First Amendment context, the Plaintiffs must show "the law is unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others." Foti v. City of Menlo Park , 146 F.3d 629, 635 (9th Cir. 1998). The Ordinance applies exclusively to potential contractors who have contracts or sponsorship with the NRA, so it is not clear the Ordinance would or could constitutionally affect anyone except the NRA and its business partners. Establishing an as-applied challenge to this Ordinance requires a circular argument—because the Ordinance facially requires disclosure of "any and all contracts or sponsorship of the NRA," any application of the Ordinance necessarily only applies to potential contractors who have those connections. Dkt. 1-9 at 3. Plaintiffs cannot raise an as-applied challenge without challenging the facial validity of the Ordinance.

Plaintiffs must therefore mount a facial challenge. "An ordinance may...