Dearth v. Lynch

Citation791 F.3d 32
Decision Date23 June 2015
Docket NumberNo. 12–5305.,12–5305.
PartiesStephen DEARTH and Second Amendment Foundation, Inc., Appellants v. Loretta E. LYNCH, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Alan Gura argued the cause and filed the briefs for appellants.

Charles J. Cooper, David H. Thompson, Peter Patterson, Brian W. Barnes, and Brian S. Koukoutchos were on the brief for amicus curiae National Rifle Association of America, Inc. in support of appellants.

Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the briefs were Stuart F. Delery, Assistant Attorney General at the time the briefs were filed, Ronald C. Machen Jr., U.S. Attorney, and Mark B. Stern, Michael S. Raab, and Anisha S. Dasgupta, Attorneys.

Before: HENDERSON and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

Opinion concurring in the judgment filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge HENDERSON.

RANDOLPH, Senior Circuit Judge:

I.

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and supplemental briefs and oral arguments of counsel. For the reasons stated below, it is

ORDERED AND ADJUDGED that the district court's grant of summary judgment in favor of the United States is vacated with respect to plaintiff Dearth and plaintiff Second Amendment Foundation, Inc. (insofar as its claim is based on Dearth's standing), and the case is remanded for trial.

II.

We take this action although it may well be that, in the words of Rule 56(a), “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Even in those circumstances, the courts retain discretion to refuse to decide cases on the basis of a record developed on summary judgment. See Kennedy v. Silas Mason Co., 334 U.S. 249, 256–57, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948) ; 10A Charles Allen Wright et al., Fed. Practice & Procedure § 2728 (3d ed.2013).

The question in this case is whether a citizen who permanently resides outside the United States has a right under the Second Amendment to the United States Constitution to purchase a firearm for self-defense while he is temporarily visiting this country. Dearth alleges that 18 U.S.C. § 922(a)(9) & (b)(3) and implementing regulations, 27 C.F.R. §§ 478.29a, 478.96, 478.99, 478.124, are unconstitutional because the provisions, in effect, prohibit citizens not residing in any state from purchasing firearms. In addition to mounting a facial attack on the provisions, Dearth purports to be bringing an as applied challenge.

This case therefore raises “an extremely important question,” and “summary procedures, however salutary where issues are clear-cut and simple, present a treacherous record for deciding issues of far-flung import.” Kennedy, 334 U.S. at 256–57, 68 S.Ct. 1031 (footnote omitted). See, e.g., Univ. of Notre Dame v. Burwell, 786 F.3d 606, 619–20 (7th Cir.2015) (Hamilton, J., concurring) (“Where the law is evolving rapidly and the facts are complex, the better course is usually full exploration of the evidence and thorough findings of fact by the district court, rather than reliance on sweeping legal doctrines and hypothesized or assumed facts.” (citing, inter alia, Doe v. Walker, 193 F.3d 42, 46 (1st Cir.1999) )). Here there are too many unanswered questions regarding Dearth's particular situation even though he seeks to mount an as applied challenge.

At the summary judgment stage, Dearth could no longer “rest on ... mere allegations,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), that might satisfy the pleading requirements, as he did in his earlier appeal, see Dearth v. Holder, 641 F.3d 499 (D.C.Cir.2011). He had to set forth “specific facts.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citing Fed.R.Civ.P. 56) (internal quotation marks omitted), not mere “conclusory statement[s].” Ass'n of Flight Attendants v. Dep't of Transp., 564 F.3d 462, 465 (D.C.Cir.2009). Nevertheless, Dearth filed nothing other than a short affidavit merely repeating the complaint's sparse allegations regarding his particular circumstances.

For example, we are able to discern, from the caption on his complaint, filed in 2009, that Dearth's address at that time was Winnipeg, Canada. He asks us now to assume that his status has remained static. Whether he had ever been a resident of any state, and if so which one, he does not reveal. Whether he is still considered a state resident for tax purposes we do not know. Whether he still votes in federal elections or pays federal taxes on his income, including income earned outside the United States, is not addressed. Dearth says he comes back to this country on occasion. Exactly where or when he comes back, to what state or states, his affidavit does not tell us. His affidavit does say that on two occasions, once in 2006 and again in 2007, while he was in the United States he unsuccessfully tried to purchase “a firearm.” What type of firearm—a hunting rifle, for instance, or a handgun—he does not mention. He swears that he “intend[s] to purchase firearms” for “lawful sporting purposes as well as for other purposes, including self-defense.” This appears deliberately ambiguous. Did he try to buy a hunting rifle, which he would also use for self-defense? Did he try to purchase a handgun solely for self-defense? We cannot tell, yet the question may be significant because in some circumstances federal law allows non-residents to obtain firearms for “lawful sporting purposes.” See 18 U.S.C. § 922(a)(5), (a)(9), (b)(3) ; 27 C.F.R. §§ 478.29a, 478.99(a), 478.115(d)(1). Where Dearth sought to engage in these transactions he neglects to mention. The omission may be significant. The laws of many states bar non-state residents like Dearth from buying a handgun so that no matter what the outcome of this case, Dearth still could not purchase a handgun in such a state.1

Dearth stated in his affidavit that he holds a “valid Utah permit to publicly carry a handgun.” But we do not know whether, if once he had a valid permit from Utah, he still does. States may require such permits to be renewed periodically. In the same sentence, Dearth adds that the Utah public-carry permit “is recognized in numerous states.” Which states? And more to the point, has Dearth visited such states in the past and is there evidence that he will do so in the future?

Dearth's counsel stated in the district court that his client possessed firearms in Canada. Here again that is not evidence, and we do not know what sort of firearms he has there, or whether he has brought his firearms with him when he entered the United States on visits, or whether there was any impediment to his doing so.

One final point deserves mention. Dearth, in his complaint, purports to be bringing his as applied claim on behalf of himself and “similarly situated individuals.” But the evidence tells us very little about Dearth's specific situation. In addition, the complaint seems to be reciting a class action allegation yet Dearth never sought, and the district court never granted, class action status to his action.

In short, for the foregoing reasons, we exercise our discretion to require that the case proceed to trial on the subjects we have mentioned and any others that bear on Dearth's claims.

GRIFFITH, Circuit Judge, concurring in the judgment:

After more than two years of consideration, three rounds of briefing, and two oral arguments, I agree with the dissent that we have sufficient information to decide this case. But since we cannot reach agreement either as to our authority to hear this case or as to the merits, I reluctantly concur in the remand so as to break this stalemate and allow the case to proceed. I concur only in Part I of the majority opinion, however, not in the rationale on which it relies in Part II to decide that remand is appropriate.

Many of the questions the opinion poses appear aimed at determining whether Dearth may be considered a resident of the United States even though he lives in Canada, in which case he would not satisfy the injury-in-fact requirement of Article III standing to challenge laws that prevent nonresidents from purchasing firearms. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). But a prior panel of this court has already held that Dearth has standing, see Dearth v. Holder, 641 F.3d 499 (D.C.Cir.2011), which binds this panel absent a relevant change in factual circumstances, see LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc) (“When there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case doctrine holds that decisions rendered on the first appeal should not be revisited on later trips to the appellate court.” (internal quotation marks and citation omitted)). Even if Dearth's standing was still an open question, Dearth has averred, and the government has conceded, that he is a United States citizen, that he “does not maintain a residence within the United States,” and that he was unable to purchase a firearm in the United States because he could not provide a state of residence on the form the ATF requires him to complete before such a purchase. See J.A. 29–30, 164. Based on these undisputed facts that the government has taken for granted in the six years since Dearth filed his complaint, this case is properly before us.

Other questions posed in the opinion seek to determine where Dearth has previously sought to purchase firearms. Answers to these questions are irrelevant as well. It is true, as the opinion notes, that many states have their own laws that bar nonresidents from buying firearms, see Maj. Op. at 35 & n. 1. The upshot of these state laws, the opinion seems to imply, is that perhaps Dearth will not be able to purchase a firearm...

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3 cases
  • Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 13, 2021
    ...us that the Second Amendment protected an individual right to bear arms. 724 F.3d at 437–38 ; see also Dearth v. Lynch , 791 F.3d 32, 49 (D.C. Cir. 2015) (Henderson, J., dissenting) ("The plaintiffs also fault the Government for submitting what is admittedly a sparse evidentiary record demo......
  • Hirschfeld v. Bureau of Alcohol
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 13, 2021
    ...had not yet taught us that the Second Amendment protected an individual right to bear arms. 724 F.3d at 437-38; see also Dearth v. Lynch, 791 F.3d 32, 49 (D.C. Cir. 2015) (Henderson, J., dissenting) ("The plaintiffs also fault the Government for submitting what is admittedly a sparse eviden......
  • Hirschfeld v. Bureau of Alcohol
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 13, 2021
    ...... taught us that the Second Amendment protected an individual. right to bear arms. 724 F.3d at 437-38; see also Dearth. v. Lynch, 791 F.3d 32, 49 (D.C. Cir. 2015) (Henderson,. J., dissenting) ("The plaintiffs also fault the. Government for ......

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