Gun group accuses Washington of taking aim at its speech

SEATTLE (CN) — Before a three-member panel of the Ninth Circuit Court of Appeals on Thursday, a gun rights group urged the court to revive its lawsuit accusing Washington leaders of unfairly targeting the group based on its political beliefs.

“No matter how much advocacy the Second Amendment Foundation is engaged in right now, it’s a hundred thousand dollars less than what it would’ve been without the retaliatory investigation,” said Jack Lovejoy, attorney with Corr Cronin representing the Second Amendment Foundation.

The Second Amendment Foundation accused former Washington Attorney General Bob Ferguson — now governor — of targeting the group in retaliation for its protected political speech. The group asserts that it was targeted due to its frequent opposition to Ferguson’s gun control policies.

The state began investigating the group for potential violations of Washington’s nonprofit and charitable organization laws around three years ago and issued confidential civil information demands (CIDs). One year later, the Second Amendment Foundation sued Ferguson, asking the federal court to terminate his investigation and accusing Ferguson of constitutional violations.

The federal court took the state’s side and dismissed the group’s claims, finding that it had failed to identify an injury caused by the investigation and that the complaint didn’t allege that the group’s speech had been chilled.

On appeal, the gun rights group argued that it was denied a fair opportunity to challenge the investigation.

“This is not a case where a CID was issued and on day one, we filed suit, and we just said, ‘We don’t like the CID,’” Lovejoy said.

After being served with the demand, the Second Amendment Foundation said its business partners, like accountants, stepped away from the group and stopped working with it. U.S. Circuit Judge Richard Tallman, a Bill Clinton appointee, pushed back.

“If we adopt the rule that you’re urging upon us, I think what you’re asking us to do is to declare that when a CID issues and, in your view, is a baseless investigation, that constitutes a constitutionally cognizable injury,” Tallman said.

Lovejoy conceded the point but also argued for a middle ground.

“We can’t have a lawsuit every single time that there’s a CID, and I’d agree with that,” Lovejoy said. “On the other extreme, we can’t have executive officers of governments with investigatory power decide ‘I dislike that First Amendment activity, so I’m gonna use my investigative power to impoverish that person.’”

Lovejoy also argued that the group had no reason to initially object to the demand. Because the group “didn’t have the years’ worth of evidence that this was just a politically motivated investigation.”

The state argued that the group sued to block its investigation before the state determined whether the group had violated state charities laws.

“Not only are these claims premature, but they also failed to show that they’ve been harmed by receiving civil investigative demands that are not self-enforcing,” Alexia Diorio with the Washington Attorney General’s Office said.

U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, told the state she didn’t find fault with the district court’s dismissal of certain claims brought by the Second Amendment Foundation but questioned why the group was denied the opportunity to amend its complaint.

“If their claims become ripe, they can bring them again. They’re not barred from continuing to bring claims,” Diorio responded.

Say the attorney general’s office petitions to enforce a civil investigative demand or finds that the group has violated the law, then the group would have the opportunity to raise its defenses, Diorio argued.

“There’s no constitutional right not to be investigated,” Diorio said. “So without an allegation of actual chill, there’s no harm from the mere fact that an investigation is ongoing.”

The Second Amendment Foundation argued that this reasoning will allow executive officers to make sure no claim is ever ripe.

“You can engage in whatever type of retaliatory investigation you want, as long as you never close it,” Lovejoy said.

The Ninth Circuit panel, which also included U.S. Circuit Judge Ronald Gould, a Clinton appointee, did not indicate when it would rule.