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Dissenter Objects to Denial of Rehearing Where Opinion Followed Mootness
VanDyke Bemoans Ninth Circuit’s Denial of Rehearing on Second Amendment Challenge, Citing ‘Shenanigans’ in Panel Issuing Full Decision After Controversy Ended
By a MetNews Staff Writer
Circuit Judge Lawrence VanDyke yesterday dissented from an order denying a petition for rehearing en banc by the Ninth U.S. Circuit Court of Appeals of a panel decision denying a Second Amendment challenge to the imposition of pretrial release condition temporarily barring criminal defendants from possessing firearms pending trial.
The judge objected to the denial of the en banc rehearing because of substantive concerns with the panel’s decision and what he described as “shenanigans” by the panel in “moot-proof[ing]” the appeal by issuing a summary order affirming the denial of motions to modify the conditions of relief on Second Amendment grounds before the issue was no longer ripe.
The panel followed up with a full, reasoned opinion more than a year later after the issue was mooted by the custodial housing of both defendants.
Petitioning for a rehearing were Jesus Perez-Garcia and Thomas Fencl, each of whom was charged in separate cases with felonies and was released during the pendency of their prosecutions with the condition that they agree not to possess a firearm. Each defendant filed a motion to modify the conditions of release on Second Amendment grounds and each motion, in separate proceedings, was denied.
The ensuing appeals to the Ninth Circuit were consolidated. Perez-Garcia and Fencl moved to dismiss their appeals as moot after the court ruled against them but before the panel provided its reasoning.
Panel Decision
Circuit Judge Gabriel P. Sanchez authored the opinion, filed March 18, 2024, which acknowledged that there was no live controversy at the time but found that jurisdiction remained because the issue was not moot at the time of the dispositive order. Sanchez wrote:
“By publishing the reasoning underlying our prior order, we merely explain the basis for our decision and do not take further action on the merits of Appellants’ claims. We are not the only appellate court to follow this practice….
“The Second Circuit has explained that this appellate practice of bifurcating an expedited order with its reasoning is common, often necessary, and constitutional….We agree. Our decision to publish this opinion to explain a prior order that fully adjudicated the merits of Appellants’ claims does not render the opinion advisory.”
The opinion considered the merits of the constitutional challenge and applied the principles set forth in the 2022 U.S. Supreme Court decision of New York State Rifle & Pistol Association Inc. v. Bruen, which requires courts to assess whether a firearm regulation is consistent with the Second Amendment’s text and historical understanding.
Sanchez reasoned:
“Here, the Government contends that the…firearm condition, as applied to Fencl and Perez-Garcia, is consistent with how and why our nation has historically disarmed criminal defendants facing serious charges while awaiting trial and, more generally, those who are not law-abiding, responsible citizens. We agree….”
Circuit Judge Kim McLane Wardlaw and Senior Circuit Court Judge Richard R. Clifton joined in the opinion.
Denial of Rehearing
Sanchez wrote an opinion concurring with the denial of the rehearing en banc. Clifton, Wardlaw, and Circuit Judges Lucy H. Koh, Jennifer Sung, Holly A. Thomas, and Salvador Mendoza Jr. joined in Sanchez’s concurrence.
The judge noted that grounds for rehearing en banc are limited to circumstances where it is necessary to maintain uniformity of the court’s decisions or the proceeding involves a question of unusual importance. Finding neither ground applicable, he opined that the case was “clearly unworthy” of en banc review and remarked:
“Perez-Garcia does not conflict with any decision of the Supreme Court, this court, or any other circuit court. In concluding that the…firearm condition did not violate the Second Amendment as applied to Perez-Garcia and Fencl, Perez-Garcia addressed a question of first impression. Nor does the opinion present a question of ‘exceptional importance.’….Because Fencl and Perez-Garcia raised as-applied challenges, the opinion considered only whether the…condition violates the Second Amendment as applied to them.”
Sanchez continued:
“Nevertheless, Fencl and Perez-Garcia, as well as the dissent, would convene an en banc court for the sole purpose of considering whether to exercise our discretion to grant the remedy of ‘equitable vacatur.’ To my knowledge, we have never done that before, at least not in recent memory. It would have been a particular waste of judicial resources here because the remedy sought—equitable vacatur—could not possibly affect the parties.” He declared:
“The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision.”
The jurist further cited the June 2024 U.S. Supreme Court decision in U.S. v. Rahimi—which followed the panel’s decision by a matter of months—as substantive support for the panel’s decision. The high court in Rahimi held that an individual who has been found to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
VanDyke’s View
VanDyke, quoting himself from a dissenting opinion earlier this year, wrote:
“For a majority of the judges on the Ninth Circuit, ‘any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.’….Now, barely weeks after I levied this pointed charge…, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi…— a decision released months after the panel issued its opinion….”
He continued:
“This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review.”
‘Attempted Pushback’
Adding that “I respect the feisty energy emanating from my concurring colleagues’ attempted pushback,” he said:
“Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision…which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone…agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government…in an obvious attempt to help the government meet its burden.”
He continued:
“That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?”
VanDyke urged readers to compare the panel’s opinion with his dissent and said that “[i]f, in your view, the panel’s opinion looks like how the Supreme Court expected lower courts to apply Bruen and Rahimi, then maybe, as the panel and a majority of our court would like everyone to think, there is nothing to see here. But if not, well, don’t say I didn’t warn you.”
The case is U.S. v. Perez-Garcia, 22-50314.
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