The Ninth Circuit Court of Appeals has long been viewed by many in the 2A community as the most hostile appellate court in the land when it comes to the right to keep and bear arms. In more than 50 different cases since the Supreme Court decided Heller in 2008, the Ninth Circuit has upheld gun control laws without once ever finding in favor of the plaintiffs. Even when three-judge panels conclude that a particular gun law violates the Second Amendment, an en banc review ends up siding with the State and keeping the gun control status quo in place.
Now a panel on the Ninth Circuit has apparently found another way to avoid issuing a ruling favorable to gun owners: simply hold on to the case (and their decision) until the question they’ve been tasked with answering has been rendered moot. That’s the upshot, anyway, of the decision in Wallingford v. Bonta, which challenged a California law prohibiting anyone subject to a civil restraining order from possessing firearms and ammunition.
Miranda and Richard Wallingford were the subject of a civil restraining order filed by their neighbor in 2018, and when the Wallingfords applied for and received a restraining order of their own against the neighbor the following year the woman once again filed a TRO request of her own. It too was granted, and in June of 2019 the Wallingfords surrendered their guns to a licensed gun dealer. Another round of restraining orders were soon in place, this time three year orders against both the Wallingfords and their neighbor, and in 2021 the couple sued the state of California to challenge the constitutionality of the law that disarmed them.
A district court ruled against the Wallingfords, but they appealed to the Ninth Circuit, and last July the three-judge panel heard oral arguments. As the panel noted in today’s decision, “[w]hile the appeal was pending, the restraining orders expired”, which gave the panel a handy excuse to rule that the case had been mooted because the Wallingfords are no longer prohibited from possessing their lawfully-acquired firearms.
Well, at least two of the three judges availed themselves of that excuse. In a blistering dissent, Judge Daniel P. Collins opined that,since the neighbor had applied for and received multiple restraining orders (though her last request was denied by the courts), the Wallingfords could easily find themselves right back where they were from 2019 until early this year, and without any real recourse for relief from the courts.
As a threshold matter, I agree with the majority that the Wallingfords’ conflict with their neighbor Nguyen provides the only possible factual basis for reasonably expecting that the Wallingfords will be subject to a relevant restraining order in the future. Moreover, the majority does not seriously dispute that it may reasonably be expected that Nguyen will again file another petition for a restraining order against the Wallingfords under § 527.6. That point seems amply supported by the Wallingfords: Nguyen has already filed three requests for restraining orders against them, and the Wallingfords have presented evidence that, at the most recent hearing in January 2023, Nguyen turned to them at one point and said, “You are not going to get away with this.” But I disagree with the majority’s conclusion that there is no reasonable expectation that the California courts will again grant Nguyen a materially similar restraining order. The majority’s analysis overlooks the fact that Nguyen has successfully sought and obtained no less than three temporary state-court restraining orders against the Wallingfords under § 527.6, which automatically subjected them to a criminal prohibition on firearms possession during the relatively short period between the issuance of those temporary orders and the merits hearing a few weeks or months later.
In short, Nguyen has successfully caused the California state courts to issue temporary restraining orders—or temporary extensions of long-term restraining orders— against the Wallingfords no less than three times. The majority nonetheless says that there is now no reasonable expectation of a recurrence, because the state court rejected Nguyen’s most recent request for a long-term extension. See Opin. at 13–14. It would be “speculative,” according to the majority, to think that the state court would grant even a temporary restraining order to Nguyen after having ruled against her on the last one. But this assertion is refuted by the fact that Nguyen has already once before obtained an immediate temporary order by re-asserting claims that had already been rejected on the merits. As noted earlier, the temporary restraining order entered against Richard on September 5, 2019 was based on the same alleged June 2018 assault that had been found to be meritless when the prior request for a long-term order was denied in August 2018. There is no support in this record for the majority’s confidence that the California courts would never issue a temporary restraining order based on a petition filed by a claimant whose previous petition was rejected on the merits. Not only have the California courts done just that to Richard Wallingford—they did so basis on that claimant’s re-assertion of the very same, previously rejected, allegations. Indeed, 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 went on to say that, given the short duration of the restraining order, it’s not unreasonable for the courts to keep the issue alive even if the restraining order itself has reached its expiration date. Otherwise, “[t]emporary orders issued under § 527.6 thus evade federal court review, ensuring that the alleged constitutional violations cannot be adjudicated on the merits.”
It seems to me that’s precisely what a majority of this three-judge panel intended, and the result is that a law that should have been overturned or at least subjected to the Bruen test will get a pass… at least from the Ninth Circuit. I know that the Supreme Court only grants cert in about 1 in every 10,000 cases, but I’m hoping and praying that SCOTUS will give the Wallingford’s the justice they’ve been seeking… and the Ninth Circuit the smackdown it’s long deserved for their contempt for our right to keep and bear arms.