Ninth Circuit passes up chance to overturn California’s red flag gun law

LOS ANGELES (CN) — A Ninth Circuit panel decided not to strike down California's controversial "red flag" gun law, which bans anyone with a restraining order issued against them from possessing a firearm.

In a 2-1 decision issued Thursday, the court decided the original case was moot, because the three-year restraining order had expired, and the plaintiffs are once again legally allowed to own guns. And so the judges passed up the chance to weigh in on the whether the law itself violates the U.S. Constitution.

The case stems from a bitter, yearslong feud between two neighbors living in Huntington Beach, Richard and Miranda Wallingford and Jessica Nguyen. The enmity began shortly after Nguyen moved in in 2013 and wanted the Wallingfords to remove their 30-year-old melaleuca tree. The fight escalated from there; threats were made, multiple lawsuits and restraining orders were filed. Nguyen said Richard Wallingford “pulled [her] hair, pushed [her] down to the ground” and told her, "Stupid immigrant, go back to your country." The Walligfords have said that Nguyen shouted at them: "Old [expletive] white trash, next time you’ll be dead."

A judge granted three-year restraining orders against both neighbors in 2019. In accordance with a newly adopted state law, Richard Wallingford turned over his guns to a licensed dealer for storage. Nearly two years later, the Wallingfords sued to try to get their guns back. "California’s complete restriction on firearm or ammunition possession and acquisition by any person subject to a civil restraining order, regardless of the basis for the order, is unconstitutional as applied to plaintiffs," they said in their complaint. They argued judges use a fairly low standard of review in order to approve a restraining order and the bar for taking someone's constitutionally protected guns away ought to be higher.

U.S. District Judge David Carter dismissed the lawsuit, dodging the issue somewhat by finding that the Wallingfords were effectively challenging a "state court's legal conclusion," since the restraining order had been issued by a state court judge. The Wallingfords, in part spurred on by the June 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, filed an appeal. During oral arguments in July 2022, the Wallingfords' attorney Alexander Frank called California's red flag law "bizarre," adding, "And that’s why we’re here. Because the state seemingly doesn't protect federal rights."

Frank argued that mootness shouldn't doom the appeal, since Nguyen had filed not one but three restraining orders against the Wallingfords, and there was a reasonable chance she might file another. The case, he argued, therefore fell under the “capable of repetition, yet evading review” exception to mootness.

But the three-judge panel disagreed, writing that such an exception was "to be used sparingly, in exceptional situations, and generally only where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again."

The appellate judges called the threat of another restraining order "speculative and insufficient to constitute a renewed threat of the 'same action,'" especially since the state court had already denied a request to extend the previous restraining order. The judges also noted that the fact that the Wallingfords had waited two years before filing their lawsuit "cut materially against them," since they couldn't just blame lengthy litigation for running out the three-year clock.

"It has been more than seven months since the Orange County Superior Court denied Ms. Nguyen’s most recent request to extend her restraining orders, and to our knowledge, there have been no further requests," U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, wrote for the majority. "The Wallingfords have simply not shown that this case is one of the 'exceptional situations' warranting the application of the 'capable of repetition, yet evading review.'"

Senior U.S. District Judge Elizabeth Foote, a Barack Obama appointee, sitting by designation from the Western District of Louisiana joined Bennett's opinion. But U.S. Circuit Judge Daniel Collins, another Trump appointee, dissented, claiming restraining orders, along with their accompanying gun bans, are handed out willy-nilly by the state court.

"From what this record reveals, it is reasonably to be expected that the California courts perfunctorily issue temporary orders on the same day that they are requested with only minimal scrutiny and without findings that would be sufficient to support an automatic deprivation of Second Amendment rights," Collins wrote.

He also took exception with Judge Carter's opinion, writing, "The Wallingfords do not assert any error in the state court’s resolution of any litigated issue; rather, they challenge the validity of the allegedly unconstitutional statutes that were triggered by the court’s ruling and the Attorney General’s continued enforcement of those statutes."

The Wallingfords' lawyer, Alexander Frank, said he and his clients were "disappointed" with the ruling.

"We were surprised to see a split between the two Trump appointees," Frank said. "But mootness is a tricky thing to apply. It’s unfortunate the case won’t receive a hearing on the merits after all, because the case presented some important Second Ammendment and due process issues, which we won’t get to." He added that given the controversial nature of the gun rights debate, it was "not entirely surprising to see mootness used as an excuse to avoid a merits hearing."

Frank said the issue of guns being taken away from people with restraining orders issued against them was "bound to come up again" in the courts.

"I don’t know what my clients are going to do," Frank said, alluding to the possibility of a further appeal. "But I can foresee someone ending up in the same position as my clients and bringing a suit. I think there must be someone out there already like that."

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