Wallingford v. Bonta

82 F.4th 797

Miranda WALLINGFORD; Richard Wallingford, Plaintiffs-Appellants, v. Robert Andres BONTA, Esquire,in his official capacity as Attorney General of the State of California, Defendant-Appellee,andDoes, 1-10, Defendant.

No.21-56292

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 15, 2022 Pasadena, California

Filed September 21, 2023

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding, D.C. No. 8:21-cv-01412-DOC-KES

Alexander A. Frank (argued), Carl D. Michel, Sean A. Brady, Anna M. Barvir, and Matthew D. Cubeiro, Michel & Associates

PC, Long Beach, California, for Plaintiffs-Appellants.

Rita B. Bosworth (argued), Deputy Attorney General; P. Patty Li, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Office of the California Attorney General, San Francisco, California; Benjamin M. Glickman, Supervising Deputy Attorney General; Anthony P. O'Brien, Deputy Attorney General; Rob A. Bonta, California Attorney General; Office of the California Attorney General, Sacramento, California; for Defendant-Appellee.

Before: Mark J. Bennett and Daniel P. Collins, Circuit Judges, and Elizabeth E. Foote,^* District Judge.

Opinion by Judge Bennett;

Dissent by Judge Collins

OPINION

BENNETT, Circuit Judge:

Certain California laws make it unlawful for any person subject to a "civil restraining order" issued by a California state court (including temporary restraining orders) to possess firearms or ammunition. See Cal. Civ. Proc. Code §§ 527.6(u)(1), 527.9; Cal. Penal Code §§ 27500, 27540, 29825, 30305-06, 30370. Plaintiffs-Appellants Miranda and Richard Wallingford ("the Wallingfords") claim these laws violate the Second Amendment and the Due Process Clause of the United States Constitution as applied to them. Though the Wallingfords were subject to civil restraining orders when they filed their suit, the orders against them have expired, and in January 2023, a California court denied the latest request to extend them. We hold that the Wallingfords' as-applied challenge to the laws is moot.

I.

The Wallingfords have lived in the same home in Huntington Beach, California for more than 50 years. In February 2013, Jessica Nguyen moved next door. Though the neighbors' relationship was initially cordial, Ms. Nguyen soon began complaining about the melaleuca tree in the Wallingfords' front yard. On June 22, 2018, Ms. Nguyen confronted Richard while Richard was taking out the trash. According to Richard, during this encounter, Ms. Nguyen "dropped to her hands and knees, began screaming, and proceeded to crawl along the concrete sidewalk and pull her hair." Ms. Nguyen then called the police and accused Richard of assaulting her.

On June 25, 2018, Ms. Nguyen petitioned for a civil harassment restraining order against Richard and was granted a temporary restraining order ("TRO") by the Orange County Superior Court. As a result of the TRO, Richard was ordered to surrender his firearms to a California licensed firearms dealer by June 26, 2018. At a merits hearing on August 17, 2018, the state court denied Ms. Nguyen's petition for a restraining order against Richard and dissolved the TRO.

Immediately following the June 22, 2018 incident, the Wallingfords installed security cameras on their property. According to the Wallingfords, in the year that followed, the cameras captured Ms. Nguyen yelling racial epithets, making violent threats, and entering the Wallingfords' property to pour bleach on the melaleuca tree. On June 17, 2019, Miranda filed her own petition for a civil harassment restraining order against Ms. Nguyen. The petition was granted, and the state court issued a TRO against Ms. Nguyen on June 18, 2019.

Ms. Nguyen then filed new petitions for restraining orders against both Miranda and Richard on September 5, 2019, claiming the cameras on the Wallingfords' property were invading her privacy. The court granted the TROs Ms. Nguyen sought, and the Wallingfords surrendered their firearms to a California licensed firearms dealer on September 6, 2019.

On November 1, 2019, the state court granted Miranda a three-year restraining order against Ms. Nguyen, while also granting Ms. Nguyen three-year restraining orders against both Wallingfords. Because of the restraining orders issued against them, the Wallingfords were prohibited from possessing firearms and ammunition. The Wallingfords did not seek to modify, terminate, or appeal the restraining orders, nor did they raise any constitutional claims in state court.

On August 30, 2021, almost two years after the first of the 2019 restraining orders was issued against the Wallingfords, they filed suit against the California Attorney General, claiming that "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." The district court dismissed the suit on October 28, 2021, and the Wallingfords appealed. On appeal, we submitted this case after oral argument on July 15, 2022.

Months passed. While the appeal was pending, the restraining orders expired.¹ Ms. Nguyen sought to renew her restraining orders, but on January 17, 2023, the state court denied her attempt, and the restraining orders were not renewed. There are presently no civil restraining orders against the Wallingfords; they are once again entitled to possess firearms and ammunition and have been since at least January 2023.

II.

The constitutional requirement that federal courts resolve "only actual, ongoing cases or controversies" applies "through all stages of federal judicial proceedings, trial and appellate." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). "[I]t is not enough that a dispute was very much alive when suit was filed." Id. For federal courts to retain jurisdiction, the parties in a dispute "must continue to have a personal stake in the outcome of the lawsuit." Id. at 478, 110 S.Ct. 1249 (cleaned up). "A case that becomes moot at any point during the proceedings is no longer a 'Case' or 'Controversy' for purposes of Article III, and is outside the jurisdiction of the federal courts." United States v. Sanchez-Gomez, — U.S. —, 138 S. Ct. 1532, 1537, 200 L.Ed.2d 792 (2018) (internal quotation marks and citation omitted). "Mootness is a question of law," ASW v. Oregon, 424 F.3d 970, 973 (9th Cir. 2005), and federal courts must consider mootness sua sponte, NASD Dispute Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1068 (9th Cir. 2007).

While the Wallingfords admit that they are no longer subject to any firearm restrictions, they argue that this case falls into the "capable of repetition, yet evading review" exception to mootness.² We first note that this doctrine is to be used sparingly, only in "exceptional situations," "and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality," Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). It "applies 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." See Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (cleaned up). The plaintiff carries the burden of demonstrating the exception applies, Dep't of Fish & Game v. Fed. Subsistence Bd., 62 F.4th 1177, 1181 (9th Cir. 2023), including showing that there is a reasonable expectation that he will once again face the challenged activity, Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021).

We find the exception inapplicable here. This case is moot because the relevant restraining orders have expired, a three-year-long restraining order is not too brief to be litigated on the merits, and there is no reasonable expectation that the Wallingfords will be subject to the "same action" again. And even were this case capable of repetition, yet evading review, the Wallingfords' two-year delay in suing cuts materially against them.

A. A Three-Year-Long Restraining Order Does Not Evade Review

At the time they filed suit, the Wallingfords were subject to three-year restraining orders and had been subject to brief TROs³, all carrying firearm restrictions. They challenged these restrictions as unconstitutional as applied to them. In assessing whether an action is of "inherently limited duration" in order to be considered "too short to be fully litigated prior to cessation or expiration," courts tend to look at cases by type rather than individual circumstances. Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014) (cleaned up). This is "because the 'capable of repetition, yet evading review' exception is concerned not with particular lawsuits, but with classes of cases that, absent an exception, would always evade judicial review." Id. Under our precedent, restraining orders lasting three years do not qualify as too brief to be sufficiently litigated on the merits.

Though there is no bright-line rule, when assessing the classes of cases inherently limited in duration, actions lasting more than two years are frequently considered long enough to be fully litigated prior to cessation, while actions lasting less than two years are considered too short. Compare Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2012) (en banc) (actions lasting "only one or two years" evade review), with Hamamoto v. Ige, 881 F.3d 719, 722-23 (9th Cir. 2018) (action lasting two years and five months sufficiently long).⁴

The restraining orders at issue in this case lasted for three years—beyond the line we drew in Ha...