Judge Calls Out Game Ninth Circuit Plays That Enable States to Continue to Violate Citizens’ Gun Rights

By Shelby Baird Smith

In his recent dissent in Teter v. Lopez, Judge Lawrence VanDyke highlighted a procedural machination employed by the en banc U.S. Court of Appeals for the Ninth Circuit that allowed Hawaii to evade a Second Amendment challenge to its ban on butterfly knives.

Initially, a three-judge panel unanimously and correctly held that Hawaii’s ban was unconstitutional under the rigorous test established by the U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen. Judge VanDyke explained that the Ninth Circuit “responded the way it always does when a Second Amendment claim is vindicated” by taking the case en banc (i.e., heard by a panel of 11 randomly selected judges from the circuit). While it is not uncommon for federal courts of appeals to consider a case en banc, the Ninth Circuit has developed a highly unusual practice of automatically vacating a three-judge panel’s opinion when it grants en banc review.

Judicial Gamesmanship

Automatic vacatur of a three-judge panel’s opinion may seem like a minor procedural process, but, as Judge VanDyke noted, it “creates perverse incentives for government defendants.” When the Ninth Circuit grants en banc rehearing, it provides an opportunity for government defendants to amend the challenged law so that it can not only evade review, but the government also gets the added benefit of taking the prior panel opinion finding their action unlawful off the books. That’s exactly what Hawaii did in Teter.

After the Ninth Circuit granted en banc review, Hawaii amended its butterfly knife ban so that it conveniently addressed only the plaintiffs’ claims, which the en banc Ninth Circuit then cited as evidence that the court could not provide the plaintiffs any relief and, as a result, concluded that the case was moot. All the while, Hawaii (and other states seeking to undermine Second Amendment rights) do not have to live with the precedential effects of the prior panel opinion, which faithfully applied the Bruen test to determine that the butterfly knife ban violated the constitution. As Judge VanDyke explained, these maneuvers not only allow government defendants to dismiss the litigation unscathed but also leaves them “free to reenact the very law the panel only recently declared unconstitutional.”

Unfortunately, this type of gamesmanship in Second Amendment challenges has become par for the course as governments have sought to evade the Bruen test. What is more alarming is that courts have likewise employed unusual procedural machinations in an effort to circumvent the Supreme Court’s clear Second Amendment precedents.

As Judge VanDyke noted, the Ninth Circuit consistently grants en banc rehearing for panel opinions vindicating Second Amendment rights. In Duncan v. Bonta, which involves a challenge to California’s magazine ban, the Ninth Circuit bypassed the normal appellate process – after the district court found that the ban was unconstitutional – and reconvened an earlier en banc panel composed mostly of non-active judges and granted a stay of the district court’s decision over the dissent of most of the active judges in the court. The reconstituted en banc panel is the same one that previously upheld the ban. Though its earlier opinion was vacated and remanded in light of Bruen, there is little mystery in how the en banc panel is likely to rule. Still, the Duncan case has been pending for nearly a year, and many other challenges in the Ninth Circuit are stayed until the en banc panel issues an opinion.

It’s Not Just the Ninth Circuit

Not to be outdone by the Ninth Circuit, the Fourth Circuit sua sponte granted en banc review – i.e., without a request from the litigants – in two Second Amendment challenges after one panel ruled in favor of the Second Amendment rights of citizens wishing to obtain a permit to carry firearms in Maryland. Judge Julius Richardson outlined in his dissent in the second case – Bianchi v. Brown, a challenge to Maryland’s MSR ban – the strange procedural posture of the initial en banc review. The three-judge panel heard the case, and the majority promptly circulated a decision holding that the MSR ban was unconstitutional.  However, no dissent was circulated for over a year.

As the proposed opinion sat idle, a different Fourth Circuit panel heard another Second Amendment challenge and quickly circulated an opinion interpreting and applying Bruen in a way that was at odds with the Bianchi panel’s conclusion. Facing two competing interpretations of Bruen, the en banc Fourth Circuit refused to let the earlier, pro-Second Amendment opinion control and instead invoked the extraordinary initial en banc review process. Unsurprisingly, the en banc Fourth Circuit upheld the MSR ban in an opinion that openly defied and derogated the Supreme Court’s Heller and Bruen precedents at every step. The petition for certiorari for the case (now called Snope v. Brown) is currently pending at the Supreme Court.

The above-mentioned judges – as well as NSSF in its amicus briefs urging the Supreme Court to take hardware ban cases – have sounded the alarm with regards to the procedural machinations that have been employed to circumvent Heller and Bruen and undermine Second Amendment rights. The time has come for the Supreme Court to step in and take on one of these challenges to ensure that the right of law-abiding citizens to keep and bear arms is no longer treated as second class.

 

Shelby Baird Smith is Chief Litigation Counsel for the National Shooting Sports Foundation.