Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives

• Decision Date: 22 September 2021
• Docket Number: No. 19-2250,19-2250
• Citation: 14 F.4th 322
• Parties: Tanner HIRSCHFELD; Natalia Marshall, Plaintiffs – Appellants, v. BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; Marvin Richardson, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Merrick B. Garland, Attorney General, Defendants – Appellees. Brady; Giffords Law Center To Prevent Gun Violence; Everytown for Gun Safety Support Fund, Amici Supporting Appellee. Illinois; California; Connecticut; Delaware; the District of Columbia; Hawaii; Massachusetts; Michigan; Minnesota; New Jersey; New Mexico; New York; North Carolina; Oregon; Pennsylvania; Rhode Island; Vermont; Washington; Commonwealth of Virginia ; State of Maryland; March for Our Lives Action Fund, Amici Supporting Rehearing Petition.
• Court: U.S. Court of Appeals — Fourth Circuit

14 F.4th 322

Tanner HIRSCHFELD; Natalia Marshall, Plaintiffs – Appellants,

v. BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; Marvin Richardson, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Merrick B. Garland, Attorney General, Defendants – Appellees.Brady; Giffords Law Center To Prevent Gun Violence; Everytown for Gun Safety Support Fund, Amici Supporting Appellee.Illinois; California; Connecticut; Delaware; the District of Columbia; Hawaii; Massachusetts; Michigan; Minnesota; New Jersey; New Mexico; New York; North Carolina; Oregon; Pennsylvania; Rhode Island; Vermont; Washington; Commonwealth of Virginia ; State of Maryland; March for Our Lives Action Fund, Amici Supporting Rehearing Petition.

No. 19-2250

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2020

Decided: September 22, 2021

Elliott Michael Harding, Harding Counsel PLLC, Charlottesville, VA, for Plaintiffs-Appellants.

Thomas T. Cullen, United States District Court, Western District of Virginia, Roanoke, VA, Courtney Lynn Dixon, Kyle T. Edwards, U. S. Department of Justice, Civil Appellate, Joseph H. Hunt, U. S. Department of Justice, Office of Immigration Litigation, Mark B. Stern, U. S. Department of Justice, Civil Rights Division, Thais-Lyn Trayer, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants-Appellees.

Angela N. Ellis, Sullivan & Cromwell, LLP, Jonathan Elias Lowy, Christa Nicols, Kelly Sampson, Brady Center To Prevent Gun Violence Legal Action Project, Washington, DC, Jon M. Talotta, Hogan Lovells US LLP, Tysons, VA, for Amicus Supporting Appellee Brady.

Janet Carter, Lisa Ebersole, Carina Bentata Gryting, William J. Taylor, Jr., Eric Tirschwell, Everytown Law, Karen S. Kennedy, Darren A. Laverne, Jessica K. Weigel, Kramer Levin Naftalis & Frankel LLP, New York, NY, Angela N. Ellis, Sullivan & Cromwell, LLP, Washington, DC, for Amicus Supporting Appellee Everytown for Gun Safety Support Fund.

Angela N. Ellis, Joseph Jackson Froliklong, David Wilfred Gould, IV, Madeline B. Jenks, Robert A. Sacks, Sullivan & Cromwell, LLP, Washington, DC, Hannah Friedman, Esther Sanchez-Gomez, Hannah Shearer, Giffords Law Center To Prevent Gun Violence, San Francisco, CA, J. Adam Skaggs, Giffords Law Center To Prevent Gun Violence, Leonid Traps, Sullivan & Cromwell, LLP, Rachel H. VanGelder, New York, NY, for Amicus Supporting Appellee Giffords Law Center To Prevent Gun Violence.

Alex Hemmer, Deputy Solicitor General, Jane Elinor Notz, Kwame Raoul, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Illinois.

Robert Bonta, Office of the Attorney General of California, Sacramento, CA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition California.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, William Tong, Office of the Attorney General of Connecticut, Hartford, CT, for Amicus Supporting Rehearing Petition Connecticut.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Kathleen Jennings, Attorney General of Delaware, Wilmington, DE, for Amicus Supporting Rehearing Petition Delaware.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Karl Anthony Racine, Attorney General, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Section IV, Washington, DC, for Amicus Supporting Rehearing Petition The District of Columbia.

Clare E. Connors, Attorney General of Hawaii, Honolulu, HI, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Hawaii.

Maura Healey, Attorney General, Office of the Attorney General, Boston, MA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Massachusetts.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Dana Nessel, Office of the Attorney General of Michigan, Lansing, MI, for Amicus Supporting Rehearing Petition Michigan.

Keith Ellison, Office of the Attorney General, St. Paul, MN, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Minnesota.

Andrew Bruck, New Jersey Division of Law & Public Safety, Trenton, NJ, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition New Jersey.

Hector Balderas, Office of the Attorney General of New Mexico, Santa Fe, NM, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition New Mexico.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Letitia James, Office of the Attorney General, Albany, NY, for Amicus Supporting Rehearing Petition New York.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Josh Stein, Office of the Attorney General of North Carolina, Raleigh, NC, for Amicus Supporting Rehearing Petition North Carolina.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Ellen F. Rosenblum, Attorney General, Attorney General of Oregon, Salem, OR, for Amicus Supporting Rehearing Petition Oregon.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Josh Shapiro, Office of the Attorney General, Harrisonburg, PA, for Amicus Supporting Rehearing Petition Pennsylvania.

Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, Peter F. Neronha, Office of the Attorney General, Providence, RI, for Amicus Supporting Rehearing Petition Rhode Island.

Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General of Vermont, Montpelier, VT, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Vermont.

Robert W. Ferguson, Attorney General, Office of the Attorney General of Washington, Olympia, WA, Alex Hemmer, Deputy Solicitor General, Office of the Attorney General of Illinois, Chicago, IL, for Amicus Supporting Rehearing Petition Washington.

Erin B. Ashwell, Mark Rankin Herring, Attorney General, Brittany Marie Jones, Michelle Shane Kallen, Jessica Merry Samuels, Rohiniyurie Tashima, Office of the Attorney General of Virginia, Richmond, VA, for Amicus Supporting Rehearing Petition Commonwealth of Virginia.

Brian E. Frosh, Esq., Attorney General, Steven Marshall Sullivan, Assistant Attorney General, Office of the Attorney General of Maryland, Consumer Protection Division, James Nelson Lewis, Esq., Office of the Attorney General of Maryland, Civil Division, Baltimore, MD, for Amicus Supporting Rehearing Petition State of Maryland.

Angela N. Ellis, Sullivan & Cromwell, LLP, Washington, DC, for Amicus Supporting Rehearing Petition March for Our Lives Action Fund.

Before AGEE, WYNN, and RICHARDSON, Circuit Judges.

Motion to intervene or join new parties denied; motion to vacate prior opinions granted; remanded with directions to dismiss. Judge Richardson wrote the opinion, in which Judge Agee joined. Judge Wynn wrote an opinion concurring in the result.

RICHARDSON, Circuit Judge:

Plaintiff Natalia Marshall, while under the age of 21, wished to purchase a handgun from a federally licensed firearms dealer and sued to challenge the constitutionality of the federal laws and regulations which prohibited her from doing so while she was 18–20 years old. A divided panel of this court found those laws violated the text, structure, history, and tradition of the Second Amendment. After the opinion issued but before the mandate, Marshall turned 21. And that made her claims moot. Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case. So it must be dismissed as moot.

Once a case is rendered moot on appeal, we customarily vacate the opinions and remand with direction to dismiss. See United States v. Munsingwear, Inc. , 340 U.S. 36, 39–40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) ; Norfolk S. Ry. v. City of Alexandria , 608 F.3d 150, 161 (4th Cir. 2010).

After weighing the equities, we follow that custom here.

I. This case is moot

We, of course, have only the power to adjudicate "Cases" and "Controversies." U.S. Const. art. III, § 2. A "Case" or "Controversy" under Article III no longer exists "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt , 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam)). The case is instead moot and must be dismissed, "[n]o matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit." Id. Here, Marshall challenged the prohibition on buying a handgun from a federally licensed firearms dealer while she was under 21. Once she turned 21, nothing prohibited her from buying the handgun she desired from a dealer of her choice. So her original claims are now moot. See Craig v. Boren , 429 U.S. 190, 192, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).¹

To try to breathe new life into her claims after they became moot, Marshall alleged for the first time that she wishes to sell handguns to friends under 21. Those private sales would not typically be affected by the challenged laws and regulations. But Marshall seeks to bring those sales within this court's purview by alleging that she wishes to use a federally licensed firearm dealer to facilitate the sales (by, for example, running background checks on her friends).²...