                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 26 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NORTHWEST SCHOOL OF SAFETY, a                    No.   15-35452
Washington sole proprietorship; et al.,
                                                 D.C. No. 3:14-cv-06026-BHS
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

BOB FERGUSON, Attorney General of
Washington (in his official capacity); et
al.,

              Defendants-Appellees,

CHERYL STUMBO; et al.,

              Intervenor-Defendants-
              Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                      Argued and Submitted October 2, 2017
                              Seattle, Washington

Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Northwest School of Safety, et al. appeal from the district court’s grant of

Defendants-Appellees’ motion to dismiss. The district court concluded that

Appellants lack constitutional standing to challenge Initiative 594 (“I-594”), a

Washington law that extended the State’s background-check requirements to non-

commercial transfers of firearms. We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm.

      1.     While this appeal was pending, the Washington Legislature amended

the statutory provisions added by I-594 to clarify that the background check

requirement does not apply to “circumstances in which the transferee and the

firearm remain in the presence of the transferor.” See Act of July 23, 2017, ch.

264, 2017 Wash. Sess. Laws 913. Northwest School of Safety, Puget Sound

Security, Inc., and Pacific Northwest Association of Investigators, Inc. concede

that this amendment renders their appeals moot. We therefore dismiss Northwest

School of Safety, Puget Sound Security, Inc., and Pacific Northwest Association of

Investigators, Inc. from this appeal.

      2.     Turning to the remaining Appellants, we conclude that the district

court correctly decided that Appellants lack constitutional standing to challenge I-

594. “In evaluating the genuineness of a claimed threat of prosecution, we look to

whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in


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question, whether the prosecuting authorities have communicated a specific

warning or threat to initiate proceedings, and the history of past prosecution or

enforcement under the challenged statute.” Thomas v. Anchorage Equal Rights

Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (citing San Diego Cty.

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996)). Although a

plaintiff does not need to “expose himself to liability before bringing suit,”

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007), a plaintiff must

demonstrate “a genuine threat of enforcement of a disputed state criminal statute,”

Steffel v. Thompson, 415 U.S. 452, 475 (1974); cf. Clapper v. Amnesty Int’l USA,

568 U.S. 398, 402 (2013) (“[R]espondents cannot manufacture standing by

choosing to make expenditures based on hypothetical future harm that is not

certainly impending.”); San Diego Cty. Gun Rights Comm., 98 F.3d at 1126

(“[T]he mere ‘possibility of criminal sanctions applying does not of itself create a

case or controversy.’” (quoting Boating Indus. Ass’ns v. Marshall, 601 F.2d 1376,

1385 (9th Cir. 1979))).

      Appellants fail to demonstrate a genuine threat of imminent prosecution.

Even if it were unclear whether Appellants’ activities come within the ambit of I-

594, the government has not communicated any threats or warnings or otherwise

indicated any intent to enforce the law against Appellants or others similarly


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situated. The two known instances where prosecutors have enforced the law

involved a firearm transferred without a background check that was later used as a

murder weapon and a firearm stolen from a store and exchanged for drugs. Absent

a history of enforcement against conduct like that alleged here, Appellants fail to

show a genuine threat of prosecution conferring standing under the law of this

Circuit.

      AFFIRMED, APPEAL DISMISSED.




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