Petition for Writ of Certiorari — Jesus Perez-Garcia and John Thomas Fencl, Petitioners v. United States

Supreme Court briefDec 20, 2024

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No. _____

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════

JESUS PEREZ-GARCIA, JOHN FENCL,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

═════════════════════════

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

═════════════════════════

KATIE HURRELBRINK

Appellate Attorney

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101

Katie_Hurrelbrink@fd.org

Counsel for Petitioners

QUESTION PRESENTED

Petitioners raised as-applied Second Amendment challenges to firearms-related

conditions of pretrial release. After their cases mooted, but before this Court issued

a decision in United States v. Rahimi, 602 U.S. 680 (2024), the Ninth Circuit

published an opinion rejecting that challenge. Since Rahimi, this Court has granted

at least 19 certiorari petitions raising diverse Second Amendment issues, vacated

the opinions below, and remanded. The questions presented are:

(1) Whether this Court should grant this petition, vacate the Second

Amendment opinion below, and remand with instructions to dismiss the case

as moot.

(2) Whether courts have Article III jurisdiction to issue a reasoned judicial

opinion after a case becomes moot, so long as they announce the case’s

disposition before the case moots.

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PARTIES, RELATED PROCEEDINGS, AND RULE 29.6 STATEMENT

The parties to the proceeding below were Petitioners Jesus Perez-Garcia and

John Fencl and the United States. There are no nongovernmental corporate parties

requiring a disclosure statement under Supreme Court Rule 29.6.

All proceedings directly related to the case, per Rule 14.1(b)(iii), are as

follows:



United States v. Perez-Garcia, No. 22-cr-01581-GPC, U.S. Magistrate

Court for the Southern District of California, opinion issued September

18, 2022.



United States v. Fencl, No. 21-cr-03101-JLS, U.S. Magistrate Court for the

Southern District of California, opinion issued October 19, 2022.



United States v. Perez-Garcia, No. 22-cr-01581-GPC, U.S. District Court

for the Southern District of California, opinion issued December 6, 2022.



United States v. Fencl, No. 21-cr-03101-JLS, U.S. District Court for the

Southern District of California, opinion issued December 7, 2022.



United States v. Perez-Garcia, Nos. 22-50314, 22-50316, U.S. Court of

Appeals for the Ninth Circuit. Published opinion issued March 18, 2024.



United States v. Perez-Garcia, Nos. 22-50314, 22-50316, U.S. Court of

Appeals for the Ninth Circuit. Order denying petition for panel rehearing

and rehearing en banc, and concurrence and dissent in the denial, issued

September 4, 2024.

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TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... PREFIX

PARTIES, RELATED PROCEEDINGS, AND RULE 29.6 STATEMENT ............................. PREFIX

TABLE OF AUTHORITIES ................................................................................................... ii

APPENDIX INDEX .......................................................................................................... viii

INTRODUCTION ................................................................................................................ 1

OPINION BELOW .............................................................................................................. 3

JURISDICTION .................................................................................................................. 4

RELEVANT CONSTITUTIONAL PROVISIONS ....................................................................... 4

STATEMENT OF THE CASE ................................................................................................ 5

REASONS FOR GRANTING THE PETITION .......................................................................... 9

This Court should grant, vacate, and remand with instructions

to dismiss as moot. ................................................................................... 9

Vacatur in light of Rahimi is appropriate because the

opinion below adopted the now-rejected “law-abiding,

responsible citizens” tradition, and it lacked the benefit of

Rahimi’s methodological clarifications. ...................................... 10

Equitable considerations warrant vacatur. ................................ 15

Vacatur is warranted under Munsingwear. .................... 16

The public interest favors vacatur, given this

Court’s consistent policy of clearing the path for

post-Rahimi relitigation and the Ninth Circuit’s

departures from judicial norms. ....................................... 19

Alternatively, this Court should grant certiorari to resolve

whether courts can issue a judicial opinion after a case becomes

moot......................................................................................................... 26

The circuits are split on this question, and this case

squarely presents the issue. ........................................................ 27

The opinion below is wrong, and this case illustrates both

the imprudence of that view and the importance of this

question. ....................................................................................... 33

CONCLUSION............................................................................................................. 37

TABLE OF AUTHORITIES

Cases

Page(s)

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023) (Jackson, J., concurring) ............................................................. 20

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013) .................................................................................................... 27

Alvarez v. Smith,

558 U.S. 87 (2009) .................................................................................. 15, 17, 18, 20

Anderson v. Green,

513 U.S. 557 (1995) .................................................................................................. 17

Antonyuk v. James,

144 S. Ct. 2709 (2024) ................................................................................................ 9

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) .................................................................................................... 16

Azar v. Garza,

584 U.S. 726 (2018) ...................................................................................... 16, 18, 20

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986) .................................................................................................... 4

Borne v. United States,

No. 23-7293 ................................................................................................................. 9

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) .................................................................................................. 27

Camreta v. Greene,

563 U.S. 692 (2011) .................................................................................................. 20

Canada v. United States,

No. 24-5391 ........................................................................................................... 9, 10

Coal. to End Permanent Cong. v. Runyon,

979 F.2d 219 (D.C. Cir. 1992) ...................................................................... 30, 31, 37

Cunningham v. United States,

144 S. Ct. 2713 (2024) .............................................................................................. 10

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) .................................................................................................. 34

Dilley v. Gunn,

64 F.3d 1365 (9th Cir. 1995) .................................................................................... 19

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................................................................................. 11

Doss v. United States,

144 S. Ct. 2712 (2024) .............................................................................................. 10

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ...................................................................................................... 30

Environmental Protection Information Center, Inc. v. Pacific Lumber Co.,

257 F.3d 1077 (9th Cir. 2001) ........................................................................ 7, 29, 30

Ex parte Quirin,

317 U.S. 1, modified sub nom. U.S. ex rel. Quirin v. Cox, 63 S. Ct. 22 (1942)....... 32

Farris v. United States,

No. 23-7501 ................................................................................................................. 9

Gann v. United States,

142 S. Ct. 1 (2021) .................................................................................................... 32

Garland v. Range,

144 S. Ct. 2706 (2024) .......................................................................................... 9, 10

Greater New Orleans Broad. Ass'n v. United States,

527 U.S. 173, 184 (1999) .......................................................................................... 22

Hassoun v. Searls,

976 F.3d 121 (2d Cir. 2020)...................................................................................... 17

Hoeft v. United States,

No. 24-5406 ................................................................................................................. 9

In re Ghandtchi,

705 F.2d 1315 (11th Cir. 1983) ................................................................................ 16

iii

In re Grand Jury Investigation,

399 F.3d 527 (2d Cir. 2005).......................................................................... 28, 30, 35

Jackson v. United States,

144 S. Ct. 2710 (2024) .............................................................................................. 10

Jones v. United States,

No. 24-5315 ................................................................................................................. 9

Kerkhof v. MCI WorldCom, Inc.,

282 F.3d 44 (1st Cir. 2002)....................................................................................... 16

Khodara Env't, Inc. ex rel. Eagle Env't L.P. v. Beckman,

237 F.3d 186 (3d Cir. 2001)...................................................................................... 19

Kirby v. United States,

No. 24-5453 ................................................................................................................. 9

Lexmark Int'l, Inc. v. Static Control Components, Inc.,

572 U.S. 118 (2014) .................................................................................................. 30

Lindsey v. United States,

No. 24-5328 ................................................................................................................. 9

Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1,

839 F.2d 1296 (8th Cir. 1988) .................................................................................. 32

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) .............................................................................................. 33

Marbury v. Madison,

1 Cranch 137 (1803) ........................................................................................... 33, 34

Mayfield v. United States,

No. 24-5488 ................................................................................................................. 9

Mayorkas v. Innovation L. Lab,

141 S. Ct. 2842 (2021) .............................................................................................. 37

McClendon v. City of Albuquerque,

100 F.3d 863 (10th Cir. 1996) .................................................................................. 19

Miller v. Gammie,

335 F.3d 889, 893 (9th Cir. 2003) ............................................................................ 26

New York State Rifle & Pistol Ass'n, Inc. v. Bruen,

597 U.S. 1 (2022) .......................................................................... 6, 11, 23, 24, 25, 26

Pierre v. United States,

No. 24-37 ..................................................................................................................... 9

Range v. Att'y Gen. United States of Am.,

69 F.4th 96 (3d Cir. 2023) (en banc) .................................................................. 10, 22

Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet,

260 F.3d 114 (2d Cir. 2001)................................................................................ 17, 18

Stack v. Boyle,

342 U.S. 1 (1951) ........................................................................................................ 4

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .................................................................................................... 29

Talbot v. United States,

No. 24-5258 ................................................................................................................. 9

Trump v. Hawaii,

583 U.S. 941 (2017) .................................................................................................. 37

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994) ...................................................... 4, 15, 16, 20, 21, 27, 28, 33, 35

United States v. Alaniz,

69 F.4th 1124 (9th Cir. 2023)................................................................................... 23

United States v. Daniels,

144 S. Ct. 2707 (2024) ................................................................................................ 9

United States v. Daniels,

77 F.4th 337 (5th Cir. 2023)............................................................................... 14, 21

United States v. Hernandez-Meza,

720 F.3d 760 (9th Cir. 2013) .................................................................................... 36

United States v. Hicks,

649 F. Supp. 3d 357 (W.D. Tex. 2023) ..................................................................... 21

United States v. Jackson,

69 F.4th 495 (8th Cir. 2023)............................................................. 10, 14, 15, 21, 23

United States v. Krane,

625 F.3d 568 (9th Cir. 2010) .................................................................................... 16

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) .................................................................. 3, 15, 16, 17, 18, 19, 20

United States v. Nutter,

624 F. Supp. 3d 636 (S.D.W. Va. 2022) ................................................................... 21

United States v. Perez-Gallan,

144 S. Ct. 2707 (2024) .............................................................................................. 10

United States v. Perez-Garcia,

115 F.4th 1002 (9th Cir. 2024)............................. 2, 3, 4, 9, 12, 22, 23, 24, 25, 26, 36

United States v. Perez-Garcia,

96 F.4th 1166 (9th Cir. 2024)................... 1-3, 7-8, 11-14, 21-23, 25-26, 29-30, 33-36

United States v. Price,

635 F. Supp. 3d 455 (S.D.W. Va. 2022) ................................................................... 21

United States v. Rahimi,

602 U.S. 680 (2024) ............................................................. 1-2, 8, 9-15, 21, 24-26, 36

United States v. Salerno,

481 U.S. 739 (1987) .................................................................................................... 6

United States v. Sineneng-Smith,

590 U.S. 371 (2020) .................................................................................................. 23

United States v. Tapia-Marquez,

361 F.3d 535 (9th Cir. 2004) .................................................................................... 16

United States v. Williams,

113 F.4th 637 (6th Cir. 2024)................................................................................... 22

Valley Forge Christian Coll. v. Americans United for Separation of Church & State,

Inc., 454 U.S. 464 (1982) .......................................................................................... 33

Vincent v. Garland,

144 S. Ct. 2708 (2024) ................................................................................................ 9

Willis v. United States,

No. 23-7776 ................................................................................................................. 9

Statutes

Page(s)

18 U.S.C. § 922 ..................................................................................................... 8, 9, 14

18 U.S.C. § 3142 ............................................................................................................. 5

18 U.S.C. § 3145 ............................................................................................................. 4

18 U.S.C. § 3161 ........................................................................................................... 17

28 U.S.C. § 1254 ............................................................................................................. 4

28 U.S.C. § 2106 ..................................................................................................... 15, 20

Other Authorities

Page(s)

Charles A. Wright & Arthur R. Miller, Cases Moot on Appeal, 13C Fed. Prac. &

Proc. Juris. § 3533.10 (3d ed.) .................................................................................. 16

Convention of the Suffrage men of Rhode Island, Vermont Gazette, Dec. 13, 1842. 24

John Holmes, The Statesman, or Principles of Legislation and Law (1840) ............. 24

The Compleat Constable 68 (3d ed. 1708 ................................................................... 24

The Federalist No. 78 (A. Hamilton)........................................................................... 33

Constitutional Provisions

Page(s)

U.S. Const. amend. II ...............................1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 15, 21, 22, 25, 34

U.S. Const., Article III, § 2 ................................................................ 4, 7, 27, 29, 30, 33

vii

APPENDIX INDEX

App No.

Document

United States v. Perez-Garcia, U.S. Court of Appeals for the Ninth

Circuit. Opinion, filed March 18, 2024.

United States v. Perez-Garcia, U.S. Court of Appeals for the Ninth

Circuit. Order denying petition for panel rehearing and rehearing

en banc, filed September 4, 2024.

viii

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════

JESUS PEREZ-GARCIA, JOHN FENCL,

Petitioners,

- v. UNITED STATES OF AMERICA,

Respondent.

═════════════════════════

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

═════════════════════════

Petitioners Jesus Perez-Garcia and John Fencl respectfully pray that the

Court issue a writ of certiorari, vacate the opinion of the United States Court of

Appeals for the Ninth Circuit entered on March 18, 2024, and remand with

instructions to dismiss the case as moot.

INTRODUCTION

In this case, petitioners raised as-applied Second Amendment challenges to

firearms-related pretrial release conditions. The Ninth Circuit rejected their claims,

in part, by holding that legislatures may disarm whoever is not a “law-abiding,

responsible citizen,” including those “deemed dangerous.” United States v. PerezGarcia, 96 F.4th 1166, 1186, 1192 (9th Cir. 2024).

This Court’s opinion in United States v. Rahimi, 602 U.S. 680 (2024), issued

shortly after. Rahimi rejected the government’s proffered “responsible citizen”

standard and corrected lower courts’ “misunderst[andings]” about “the methodology

of [the Court’s] recent Second Amendment cases.” Id. at 691, 701. The Court then

vacated and remanded at least 19 Second Amendment decisions covering a variety

of statutes, outcomes, and methods. See infra, Section I (collecting cases).

Those 19 cases are comparable to petitioners’ in all respects but one:

Petitioners’ cases are moot. Mootness arose in unusual circumstances. Petitioners’

appeal reached the Ninth Circuit in January 2023. The day of oral argument, the

panel affirmed the conditions and stated that an opinion would follow. But that

opinion still had not issued by the time both cases mooted nine months later. Four

months after that—nearly 14 months after oral argument—the panel finally

published a 43-page decision.

The panel initially ruled on a narrow basis: that historical pretrial detention

practices validate temporarily disarming those accused of “serious” crimes. PerezGarcia, 96 F.4th at 1182-1186. Only as a second, independent ground did the court

hold that legislatures could disarm anyone deemed dangerous or not law-abiding or

responsible—a holding with “the potential to affect countless other, unrelated

cases.” United States v. Perez-Garcia, 115 F.4th 1002, 1008 (9th Cir. 2024)

(Vandyke, J., dissenting from denial of rehearing en banc). Few of the sources cited

to support that second holding appear in this case’s briefs. Nearly all appear the

government’s filings in Rahimi. But rather than wait for this Court to pass on the

government’s arguments, the panel issued its decision in mid-March 2024, shortly

before this Court’s June Rahimi opinion. Afterward, panel members opined that

mootness prevented the en banc Ninth Circuit from reconsidering or vacating the

opinion. Id. at 1003-08 (Sanchez, J., concurring in denial of rehearing en banc).

Judge Vandyke dissented, disagreeing on the merits and criticizing the procedural

irregularities. Id. at 1008 (Vandyke, J., dissenting from denial of rehearing en banc)

In these circumstances, vacatur—either under United States v. Munsingwear,

Inc., 340 U.S. 36 (1950), or for other equitable reasons—is the appropriate course.

But alternatively, this Court should review the panel’s conclusion that it retained

Article III jurisdiction to issue an opinion after the case mooted. Courts

undoubtedly have the prerogative not to withdraw decisions published before a case

moots. But the Second, Ninth, and D.C. Circuits have split on whether courts may

issue an opinion after a case moots. That question has implications for many

controversial and far-reaching matters susceptible to mootness, like administrative

actions or executive orders. And this case well illustrates the issue’s stakes: Here,

the panel passed on one of the most hotly debated Second Amendment questions, as

an unnecessary alternative holding, using sources not briefed by the parties, after

the case ceased to affect the parties, and with a guarantee that the decision would

not face further merits review. Whether the panel had the power to do so is an issue

of great importance.

OPINION BELOW

The Ninth Circuit Court of Appeals affirmed petitioners’ pretrial release

orders in a published opinion. United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir.

2024) (attached here as Appendix A). The Ninth Circuit then denied a petition for

rehearing en banc. Judge Sanchez concurred in the denial, while Judge Vandyke

dissented. United States v. Perez-Garcia, 115 F.4th 1002 (9th Cir. 2024) (attached

here as Appendix B).

JURISDICTION

The Ninth Circuit Court of Appeals entered judgment on December 20, 2021.

It denied a petition for rehearing or rehearing en banc on September 4, 2024. On

November 27, 2024, Justice Kagan extended the time to file this petition until

January 2, 2025. This Court has jurisdiction under 28 U.S.C. § 1254(1). See 18

U.S.C. § 3145(c) (noting that bail appeals are governed by 18 U.S.C. § 1291); Stack

v. Boyle, 342 U.S. 1, 6 (1951) (reviewing bail). Though this case is moot, the Court

has jurisdiction to review the Ninth Circuit’s conclusion that it had jurisdiction to

issue the opinion below, Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541

(1986), or to vacate that opinion, U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,

513 U.S. 18, 21-22 (1994).

RELEVANT CONSTITUTIONAL PROVISIONS

The Second Amendment to the U.S. Constitution provides, “A well regulated

Militia, being necessary to the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed.”

Article III, section 2, of the U.S. Constitution provides, in relevant part, “The

judicial Power shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made, or which shall be

made, under their Authority;--to all Cases affecting Ambassadors, other public

Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to

Controversies to which the United States shall be a Party;--to Controversies

between two or more States;--between a State and Citizens of another State;-between Citizens of different States,--between Citizens of the same State claiming

Lands under Grants of different States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.”

STATEMENT OF THE CASE

This Second Amendment appeal centered on a standard pretrial release

condition in the Southern District of California: that releasees not “possess a

firearm” and “legally transfer all firearms” already owned. This “Standard

Condition #4,” preprinted on every release order, “applies, unless stricken.” The

condition is redundant for statutorily prohibited possessors, as release is always

conditioned on following the law. See 18 U.S.C. § 3142(c)(1)(A). But in the Southern

District of California, where most defendants have little or no criminal history,

many may otherwise lawfully bear arms. Yet Southern District judges virtually

never strike the condition, even for charges like stealing mail, smuggling counterfeit

Levi’s, or committing misdemeanor Social Security fraud.

Mr. Perez-Garcia was among those subject to the condition. A U.S. citizen

with a concealed-carry license, Mr. Perez-Garcia previously worked as an armed

security guard. He had no criminal history. In June 2022, Mr. Perez-Garcia was

riding in the passenger seat of a friend’s car when Customs and Border Patrol

officers found drugs hidden in the car’s bumper. Neither man had a gun. Mr. Perez-

Garcia was charged with drug importation, and a magistrate judge imposed

Standard Condition #4.

Mr. Fencl was also subject to that condition. Mr. Fencl is a 60-year-old

mechanic and gun collector. Until a few years ago, he had no criminal history. But

in 2019 and 2021, police officers found handguns in his car during routine traffic

stops, resulting in a misdemeanor concealed-carry conviction. (At the time,

applicants for public-carry licenses had to show good cause, a prerequisite struck

down in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022).)

Shortly after his second arrest, a SWAT team raided his home and took his gun

collection. Federal prosecutors then charged that three of the guns were

unregistered short-barreled rifles and four tubes found in the home were

unregistered suppressors. The magistrate judge released him pretrial but imposed

Standard Condition #4.

Mr. Perez-Garcia and Mr. Fencl raised as-applied Second Amendment

challenges to Standard Condition #4, then appealed them. In the Ninth Circuit,

briefs for bail appeals are capped at 5,600 words, with a 2,800-word reply. The

government primarily argued that United States v. Salerno, 481 U.S. 739 (1987),

foreclosed the challenge and that pretrial detention practices validated gun

conditions during pretrial release. Ninth Circuit Case Number No. 22-50314,

Docket Number (“Doc.”) 14 at 5-15, 17-26. But the brief also devoted about three

pages to arguing that legislatures may “bar[] guns to people or groups deemed

dangerous or untrustworthy.” Id. at 15-17.

The case went to oral argument. That same day, the panel issued an order

stating, “We affirm the district court’s orders. An opinion explaining this disposition

will follow.” Perez-Garcia, 96 F.4th at 1172.

Months passed. No opinion issued. Mr. Perez-Garcia failed to appear at court

hearings, and his bond was forfeited. Mr. Fencl went to trial and was sentenced to

six months in custody. Accordingly, about nine months after oral argument,

petitioners moved to dismiss the cases as moot. The defense argued that the panel

could not issue a post-mootness opinion under Environmental Protection

Information Center, Inc. v. Pacific Lumber Co., which held that to “render an

opinion in spite of knowing [a] cause was moot” would be “to flout the dictates of

Article III.” 257 F.3d 1077 (9th Cir. 2001) (hereinafter, “EPIC”).

Four months later—14 months after oral argument—the Ninth Circuit

published a 43-page opinion denying the motion to dismiss and rejecting petitioners’

as-applied challenge. See Appendix A. The court denied that EPIC controlled and

held that it retained jurisdiction to “explain” its January order. Perez-Garcia, 96

F.4th at 1172-74.

The panel then gave two reasons for approving the condition. First, the panel

held that historical pretrial detention practices in capital cases validate disarming

anyone facing “serious charges” today. Id. at 1182-86. Second, as a “separate

ground” for approving the conditions, the court held that the conditions fell under a

“lengthy and extensive Anglo-American tradition of disarming individuals who are

not law-abiding, responsible citizens.” Id. at 1186.

To support the second tradition, the court relied on a diverse array of

historical sources, about 20 in all. Id. at 1186-91. Only four of these appeared in the

government’s briefs. Ninth Circuit Case Number No. 22-50314, Doc. 14, at 15-17.

But 18 appeared in a different set of filings: the Solicitor General’s petition for

certiorari and merits brief in Rahimi. Brief of the United States, United States v.

Rahimi, No. 22-915 (Aug. 14, 2023) (hereinafter, Rahimi Merits Brief); Petition for

Certiorari, Rahimi (Mar. 17, 2023) (hereinafter, Rahimi Certiorari Petition).

In these filings, the government asked this Court to reverse a Fifth Circuit

opinion striking down 18 U.S.C. § 922(g)(8), which temporarily disarms persons

subject to domestic violence restraining orders. Rahimi Merits Brief at 5. The

government defended that law by advocating for the same historical traditions

identified in Perez-Garcia. The government contended that “[t]he Second

Amendment allows Congress to disarm persons who are not law-abiding,

responsible citizens,” and it urged that Congress may disarm the “dangerous” and

those who “threaten public safety.” Rahimi Merits Brief at 10, 28. Though this

Court was set to decide Rahimi and evaluate these arguments by the term’s end in

July 2023, the Ninth Circuit issued Perez-Garcia shortly before in mid-March.

When this Court did publish its opinion in Rahimi, the Court reversed the

Fifth Circuit’s decision and held that § 922(g)(8) was constitutional as applied to

Mr. Rahimi. Rahimi, 602 U.S. at 701. But the Court declined to adopt the

government’s proposed test, reasoning that a “responsibility” standard was too

“vague.” Id.

Meanwhile, petitioners asked the en banc Ninth Circuit to vacate the PerezGarcia opinion. The petition was denied. Perez-Garcia, 115 F.4th at 1003.

Dissenting from the denial, Judge Vandyke wrote that he would have “wipe[d] the

slate clean” for future panels “to resolve the historical analogy analysis and

determine how Rahimi affects our existing caselaw.” Id. at 1015 (Vandyke, J.,

dissenting from the denial of rehearing en banc). He also thought that equitable

considerations favored vacatur in light of “the panel’s overreach, supplementation of

the government’s historical justification, and egregious jurisprudential errors.” Id.

at 1012.

This petition follows.

REASONS FOR GRANTING THE PETITION

This Court should grant, vacate, and remand with instructions to

dismiss as moot.

Following Rahimi, this Court has consistently granted certiorari petitions

presenting Second Amendment questions, vacated the opinion below, and

remanded. This Court has granted, vacated, and remanded (“GVR”) in at least 19

cases challenging a variety of statutes. See, e.g., Antonyuk v. James, 144 S. Ct. 2709

(2024) (concealed carry law); United States v. Daniels, 144 S. Ct. 2707 (2024) (18

U.S.C. § 922(g)(3)); Hoeft v. United States, No. 24-5406 (18 U.S.C. §§ 922(g)(1), (9)).1

1 See also Canada v. United States, No. 24-5391; Talbot v. United States, No.

24-5258; Jones v. United States, No. 24-5315; Kirby v. United States, No. 24-5453;

Lindsey v. United States, No. 24-5328; Mayfield v. United States, No. 24-5488; Pierre

v. United States, No. 24-37; Borne v. United States, No. 23-7293; Willis v. United

States, No. 23-7776; Farris v. United States, No. 23-7501; Vincent v. Garland, 144 S.

Ct. 2708 (2024); Garland v. Range, 144 S. Ct. 2706 (2024); United States v. Perez9

It has done so even when both parties agreed that certiorari should be granted. See

Range, 144 S. Ct. 2706. And it has vacated opinions reaching opposite conclusions

about the same law or applying significantly different versions of the Bruen test.

Compare Range v. Att'y Gen., 69 F.4th 96, 98 (3d Cir. 2023) (en banc) (accepting an

as-applied challenge to § 922(g)(1)), with United States v. Jackson, 69 F.4th 495, 502

(8th Cir. 2023) (foreclosing as-applied challenges to § 922(g)(1)). That practice

reflects a recognition that Rahimi “clarified the methodology for determining

whether a firearm regulation complies with the Second Amendment,” as well as a

desire for lower courts to implement those clarifications. Memorandum for the

United States, Canada, No. 24-5391, at 2.

This Court should do the same here, even though this case is moot. Both the

decision’s substance and equitable considerations favor vacatur.

Vacatur in light of Rahimi is appropriate because the opinion

below adopted the now-rejected “law-abiding, responsible

citizens” tradition, and it lacked the benefit of Rahimi’s

methodological clarifications.

Two substantive considerations weigh in favor of vacating this opinion in

light of Rahimi. Vacatur is appropriate, first, because the panel relied on a standard

that Rahimi explicitly rejected. The government in Rahimi asked this Court to hold

that the Second Amendment permitted disarming all who are not “law-abiding,

responsible citizens.” Rahimi, 602 U.S. at 1944 (Thomas, J., dissenting) (quoting

Gallan, 144 S. Ct. 2707 (2024); Doss v. United States, 144 S. Ct. 2712 (2024); Jackson

v. United States, 144 S. Ct. 2710 (2024); Cunningham v. United States, 144 S. Ct.

2713 (2024)

Brief for United States 6, 11–12). But the Court declined to hold “that Rahimi may

be disarmed simply because he is not ‘responsible.’” Id. at 1903 (majority opinion).

The Court gave two reasons. First, “‘[r]esponsible’ is a vague term.” Id. “It is

unclear what such a rule would entail.” Id. Second, “such a line [does not] derive

from [this Court’s] case law.” Id. Though District of Columbia v. Heller, 554 U.S.

570 (2008), and Bruen used the phrase, the opinions were merely “describ[ing] the

class of ordinary citizens who undoubtedly enjoy the Second Amendment right.” Id.

at 701-702.

This rejection was unanimous. Though several justices wrote separately,

“[n]ot a single Member of the Court adopt[ed] the Government’s theory.” Id. at 1944

(Thomas, J., dissenting).

Here, in contrast, the Ninth Circuit embraced the “law-abiding, responsible

citizens” standard. The Ninth Circuit misread the Court’s precedents just as the

Solicitor General had: The panel thought that this Court had “recognized a

historical tradition of disarming individuals who are not ‘law-abiding, responsible

citizens.’” Perez-Garcia, 96 F.4th at 1177. The Ninth Circuit therefore “agree[d]”

with the government that petitioners’ firearm conditions were “consistent with how

and why our nation has historically disarmed . . . those who are not law-abiding,

responsible citizens.” Id. at 1181.

The Ninth Circuit also carried the “law-abiding, responsible citizens”

standard into its historical review. Relying on the same sources cited in the

government’s Rahimi briefs, the panel identified “a lengthy and extensive Anglo-

American tradition of disarming individuals who are not law-abiding, responsible

citizens.” Id. at 1186. It found that English tradition supported Congress’s authority

“to authorize the disarming of individuals who are not law-abiding, responsible

citizens.” Id. at 1187. And it concluded that “regulations that authorize

disarmament only after individualized findings of dangerousness by public officials

are within the heartland of legislative power to disarm those who are not lawabiding, responsible citizens.” Id. at 1190.

After Rahimi, Judge Sanchez denied that Perez-Garcia had relied on a “lawabiding, responsible citizens” tradition. Perez-Garcia, 115 F.4th at 1007 n.4

(Sanchez, J., concurring in denial of rehearing en banc). As shown above, the

opinion does not bear that out. But it is true that, alongside the “law-abiding,

responsible citizens” phrasing, the Ninth Circuit offered several other articulations

of the tradition in question. Per the court, history supported disarming “individuals

whose possession of firearms would pose an unusual danger, beyond the ordinary

citizen, to themselves or others.” Perez-Garcia, 96 F.4th at 1186. It also permitted

“temporarily disarming . . . those deemed dangerous or unwilling to follow the law.”

Id. at 1192. That standard was “similar[]” to the government’s proposal, which

would allow disarming “people or groups deemed dangerous or unlikely to respect

the sovereign’s authority.” Id. at 1186. And these traditions gave the government

regulatory authority to “disarm[] both Fencl and Perez-Garcia after individualized

findings of dangerousness.” Id. at 1190.

These differing articulations suffer from the same vagueness problem that

caused the Court to reject the “responsible” line. Does the tradition identified in

Perez-Garcia cover dangerous “groups” or apply only after “individualized findings

of dangerousness”? Id. at 1186, 1190. Does it extend to anyone “deemed dangerous,”

or only to those who objectively “pose an unusual danger, beyond the ordinary

citizen, to themselves or others”? Id. at 1186, 1192. Does one have to be “unwilling

to follow the law,” or is it enough to prove “unlikely to respect the sovereign’s

authority”? Id. at 1186, 1192. And how do these standards relate to the “legislative

power to disarm those who are not law-abiding, responsible citizens”? Id. at 1190.

The same concerns apply to the panel’s holding that legislatures may disarm those

accused of “serious” crimes, in that the court did not explain how to decide whether

a crime is sufficiently “serious.” Id. at 1181.

In short, “[i]t is unclear what [the Ninth Circuit’s] rule would entail.” Rahimi,

602 U.S. at 701. And a Ninth Circuit panel with the benefit of Rahimi would have

known not to rely on “vague” traditions in general or the “law-abiding, responsible

citizens” tradition in particular. Id. That warrants vacatur in light of Rahimi.

Vacatur is also appropriate so future Ninth Circuit panels can write on clean

slate, with the full benefit of Rahimi’s methodological clarifications. Before Rahimi,

courts “struggled with [Bruen’s] use of history.” Rahimi, 144 S. Ct. at 739 (Barrett,

J., concurring). The “level of generality” posed particular challenges: “Must the

government produce a founding-era relative of the challenged regulation—if not a

twin, a cousin? Or do founding-era gun regulations yield concrete principles that

mark the borders of the right?” Id.

Rahimi answered that question by charting a middle course. The Court

identified a “principle” instead of a direct analogue, but it insisted that that

principle not be too “vague.” Id. at 692, 701 (majority opinion). Further, the Court

did not rely on the diverse array sources—for example, rejected constitutional

convention proposals, newspaper articles, firearm storage laws, and laws punishing

treason—from which the government derived its own vague “responsibility”

principle. See id. at 753-767 (Thomas, J., dissenting) (describing some of these

sources). Instead, the Court grounded its narrow holding on “two distinct legal

regimes” that “specifically addressed firearms violence,” and it drew particularized

parallels between the historical laws’ features and those of § 922(g)(8). Id. at 694999 (majority opinion). In Justice Barrett’s view, this analysis “settle[d] on just the

right level of generality.” Id. at 1926 (Barrett, J., concurring).

After Rahimi, this Court vacated opinions on both sides of the level-ofgenerality spectrum. That included Fifth Circuit decisions that relied on the

overruled Rahimi decision’s methodology. See, e.g., United States v. Daniels, 77

F.4th 337 (5th Cir. 2023). But it also encompassed cases like the Eighth Circuit’s

Jackson decision, which—reminiscent of both the Solicitor General’s approach in

Rahimi and the Ninth Circuit’s analysis in Perez-Garcia—relied on a large and

diverse array of sources to hold that legislatures may disarm whomever “deviates

from legal norms” or “presents an unacceptable risk of dangerousness.” 69 F.4th at

505. If Jackson is appropriate for vacatur in light of Rahimi, this case is too.

Equitable considerations warrant vacatur.

Though, in substance, this case closely tracks other recently vacated Second

Amendment opinions, it comes to this Court in a different procedural posture. The

case is moot, and it therefore cannot receive further merits review.

By statute, however, the Court retains power to vacate the opinion below. 28

U.S.C. § 2106. “Applying this statute, [the Court] normally do[es] vacate the lower

court judgment in a moot case because doing so ‘clears the path for future

relitigation of the issues between the parties,’ preserving ‘the rights of all parties,’

while prejudicing none ‘by a decision which . . . was only preliminary.’” Alvarez v.

Smith, 558 U.S. 87, 94 (2009) (quoting Munsingwear, 340 U.S. at 40). But vacatur is

not guaranteed; case-specific equities determine the proper course. Ultimately, the

Court “dispose[s] of moot cases in the manner most consonant to justice in view of

the nature and character of the conditions which have caused the case to become

moot.” Bancorp, 513 U.S. at 24 (cleaned up).

Whether under Munsingwear or for broader equitable reasons, justice favors

vacating the opinion below.

Vacatur is warranted under Munsingwear.

First, this case should be vacated using the Munsingwear procedure.2 That

procedure recognizes that “[a] party who seeks review of the merits of an adverse

ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be

forced to acquiesce in the judgment.” Bancorp, 513 U.S. at 25.

This Court has identified three scenarios in which Munsingwear plainly does

or does not apply. On the one hand, a “clear example where vacatur is in order is

when mootness occurs through the unilateral action of the party who prevailed in

the lower court.” Azar v. Garza, 584 U.S. 726, 729 (2018). So too “when mootness

occurs through happenstance—circumstances not attributable to the parties[.]”

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71 (1997). On the other hand,

“[w]here mootness results from settlement,” the losing party has “voluntarily

forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby

surrendering his claim to the equitable remedy of vacatur.” Bancorp, 513 U.S. at 25.

“These end points”—unilateral action and happenstance on one side, voluntary

settlement on the other—“mark the extremes.” Kerkhof v. MCI WorldCom, Inc., 282

F.3d 44, 54 (1st Cir. 2002) (punctuation altered). “[F]or gray-area cases” falling in

2 It is unsettled whether “the interest in preserving [criminal] conviction[s]”

prevents Munsingwear’s application to certain criminal appeals. Charles A. Wright

& Arthur R. Miller, Cases Moot on Appeal, 13C Fed. Prac. & Proc. Juris. § 3533.10

(3d ed.). But several courts have applied Munsingwear to matters ancillary to the

conviction itself, see United States v. Tapia-Marquez, 361 F.3d 535, 538 n.2 (9th Cir.

2004) (collecting cases); United States v. Krane, 625 F.3d 568, 574 (9th Cir. 2010)

(same), including in at least one moot bail appeal, see In re Ghandtchi, 705 F.2d

1315 (11th Cir. 1983). Alternatively, this Court can equitably vacate the opinion

without relying on Munsingwear. See infra, Section I.B.2.

neither category, “the result depends on particular circumstances.” Id.; accord

Hassoun v. Searls, 976 F.3d 121, 131 (2d Cir. 2020).

Here, Mr. Fencl’s case mooted due to happenstance, as his case went to trial

in the ordinary course. Mr. Fencl did not decide when trial would occur. The Speedy

Trial Act and the trial court did. See 18 U.S.C. § 3161. And his trial took place on a

normal and even extended timeline, about two years after indictment and nine

months after oral argument. Like other cases that moot due to a regular court

process or a statutory time table, his case qualifies for Munsingwear vacatur. See,

e.g., Alvarez, 558 U.S. at 96 (vacating under Munsingwear where cases “terminated

on substantive grounds in the ordinary course of such state proceedings”); Anderson

v. Green, 513 U.S. 557, 559-60 (1995) (same, where mootness resulted from a court

decision in a different case); Hassoun, 976 F.3d at 131 (same, where mootness

resulted from immigration officials’ compliance with statutory removal timeline).

Mr. Perez-Garcia is differently situated, because his case became moot after

he absconded. But “conduct that is voluntary in the sense of being non-accidental,

but which is entirely unrelated to the lawsuit, should not preclude [courts from]

vacating the decision below.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of

City of Watervliet, 260 F.3d 114, 122 (2d Cir. 2001).

In Alvarez, for example, this Court granted a State’s petition for certiorari in

consolidated federal cases challenging state forfeiture practices. 558 U.S. at 89. But

before the Court could decide the cases, State-employed attorneys mooted four of

the underlying forfeiture proceedings by settling one and voluntarily dismissing

three others. Id. at 94.

Though the State’s voluntary action caused the mootness, context convinced

this Court that the circumstances “more closely resemble[d] mootness through

‘happenstance’ than through ‘settlement.’” Id. The state forfeiture proceedings took

place independent of the federal civil action, and state dockets suggested that the

state cases “terminated on substantive grounds in the ordinary course of such state

proceedings.” Id. at 95-96. Additionally, the dismissals’ diverse circumstances

suggested that the “State’s Attorney did not coordinate the resolution of plaintiffs’

state-court cases.” Id. at 96.

In short, “the presence of this federal case played no significant role in the

termination of the separate state-court proceedings”; “a desire to avoid review in

th[e] case played no role at all in producing the state case terminations.” Id. at 9697. “And if the presence of this federal case played no role in causing the

termination of those state cases,” the Court reasoned, “there is not present here the

kind of ‘voluntary forfeit[ture]’ of a legal remedy that led the Court in Bancorp to

find that considerations of ‘fairness’ and ‘equity’ tilted against vacatur.” Id. at 97.

Accordingly, this Court invoked the Musingwear procedure and vacated the opinion

below. Id.

Other appellate courts have likewise invoked Munsingwear when the losing

party acts voluntarily, but for reasons unrelated to the litigation. That includes, for

instance, withdrawal from school after receiving a desired degree, Russman, 260

F.3d at 123; transfer of a prisoner for administrative reasons, Dilley v. Gunn, 64

F.3d 1365, 1372 (9th Cir. 1995); renewed efforts to comply with a binding

settlement agreement, McClendon v. City of Albuquerque, 100 F.3d 863, 868 (10th

Cir. 1996); and legislative amendments to a challenged statute, Khodara Env't, Inc.

ex rel. Eagle Env't L.P. v. Beckman, 237 F.3d 186, 195 (3d Cir. 2001) (collecting

cases). So long as such actions are “wholly unrelated to th[e] lawsuit and would

have occurred in the absence of th[e] litigation,” Munsingwear may apply. Dilley, 64

F.3d at 1372.

Here, Mr. Perez-Garcia did not abscond to moot this pretrial release

conditions appeal. On the one hand, Mr. Perez-Garcia had nothing to gain by

mooting this case. By absconding, he virtually guaranteed that his pretrial release

would be revoked. Thus, no pretrial release opinion—whether favorable or

unfavorable—could affect him going forward. On the other hand, absconding

severely harmed Mr. Perez-Garcia’s interests. His release was revoked, his bond

was forfeited, and if found guilty, he will likely receive an increased sentence.

Because mooting this case by absconding could not have helped Mr. Perez-Garcia,

but could only have harmed him, it is not plausible that he absconded to manipulate

the court’s jurisdiction.

The public interest favors vacatur, given this Court’s

consistent policy of clearing the path for post-Rahimi

relitigation and the Ninth Circuit’s departures from

judicial norms.

Even where Munsingwear does not apply, vacatur may still be appropriate in

a case’s unique circumstances. The statute allowing this Court to vacate lower court

opinions is “flexible,” Alvarez, 558 U.S. at 94, empowering the Court to do whatever

is “just under the circumstances.” 28 U.S.C. § 2106. Munsingwear is therefore just

one “species of vacatur”; it does not cover the field. Acheson Hotels, LLC v. Laufer,

601 U.S. 1, 15 (2023) (Jackson, J., concurring). Indeed, even the archetypical

Munsingwear-disqualifying event—voluntary settlement—does not foreclose

equitable vacatur in “extraordinary circumstances.” Bancorp, 513 U.S. at 29.

Ultimately, because vacatur “is rooted in equity, the decision whether to vacate

turns on the conditions and circumstances of the particular case.” Azar, 584 U.S. at

729.

In addition to considering the equitable factors instantiated in

Munsingwear—namely, fairness to the parties—this Court weighs the public

interest. Bancorp, 513 U.S. at 26. The public interest ordinarily warrants

preserving precedents, as they are “presumptively correct and valuable to the legal

community as a whole” and indiscriminate vacatur “disturb[s] the orderly operation

of the federal judicial system.” Id. (cleaned up).

In some cases, however, the public interest instead favors “clear[ing] the path

for future relitigation.” Camreta v. Greene, 563 U.S. 692, 713 (2011) (quoting

Munsingwear, 340 U.S., at 40). Vacating a lower court’s Fourth Amendment opinion

in Camreta, for instance, the Court observed that “a constitutional ruling in a

qualified immunity case is a legally consequential decision.” Id. Vacatur

appropriately “prevent[ed] [that] unreviewable decision ‘from spawning any legal

consequences.’” Id. (quoting Munsingwear, 340 U.S., at 40).

This Court’s post-Rahimi GVR practice in Second Amendment cases reflects

a decisive policy of clearing the path. In vacating at least 19 opinions covering a

wide variety of Second Amendment questions and approaches, see supra, Section I,

this Court indicated that decisions rendered before Rahimi are less likely to prove

“correct” or “valuable to the legal community,” Bancorp, 513 U.S. at 26, compared to

decisions made with Rahimi’s guidance. The “orderly operation of the federal

judicial system,” id., favors giving all circuits the opportunity to implement

Rahimi’s clarifications, rather than exempting the Ninth Circuit because of this

case’s unusual procedural posture.

Beyond substance, equity favors vacatur because of the Ninth Circuit’s

troubling departures from the norms and expectations governing the “orderly

operation of the federal judicial system,” id.—departures that largely created this

case’s unusual features. As noted, the Perez-Garcia decision held that governments

may disarm those who are not “law-abiding” and “responsible,” including those

“deemed dangerous” (among other descriptors, see supra, Section I.A). 96 F.4th at

1186. That holding has ramifications far beyond the pretrial context, as it tracks the

government’s key defenses for a host of gun laws. See, e.g., United States v. Daniels,

77 F.4th 337, 350 (5th Cir. 2023) (§ 922(g)(3)); United States v. Nutter, 624 F. Supp.

3d 636, 645 (S.D.W. Va. 2022) (§ 922(g)(9)); United States v. Hicks, 649 F. Supp. 3d

357, 360 (W.D. Tex. 2023) (§ 922(n)); United States v. Price, 635 F. Supp. 3d 455,

459 (S.D.W. Va. 2022) (§ 922(k)). That includes § 922(g)(1), the most commonly

charged gun crime in the federal system. See, e.g., Jackson, 110 F.4th at 1129

(foreclosing all challenges to § 922(g)(1) because felons pose an “unacceptable risk of

dangerousness”); United States v. Williams, 113 F.4th 637, 663 (6th Cir. 2024)

(holding that § 922(g)(1) is unconstitutional “as applied to dangerous people”). But

the process of coming to that crucial holding was marked by “overreach”—what

Judge Vandyke called “Second Amendment shenanigans.” Perez-Garcia, 115 F.4th

at 1008, 1012 (Vandyke, J., dissenting from denial of rehearing en banc).

First, it is “an established part of [federal] constitutional jurisprudence that

[courts] do not ordinarily reach out to make novel or unnecessarily broad

pronouncements on constitutional issues when a case can be fully resolved on a

narrower ground.” Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173,

184 (1999). Here, the panel initially decided the case on a narrow ground: that

historical detention practices in capital cases validate disarming anyone facing

“serious charges” today. Perez-Garcia, 96 F.4th at 1182-86. That was enough to

affirm. But the panel did not stop there. Instead, the panel offered its far broader

non-law-abiding/irresponsible/dangerous tradition as a “separate ground” for

affirmance. Id. at 1186, 1188.

Second, the Ninth Circuit issued this sweeping opinion despite knowing the

case was moot.3 This was a problem of the court’s own creation. Mr. Fencl’s case was

live for nine months after oral argument, plenty of time to issue a decision. Compare

Range v. Att’y Gen. United States of Am., 69 F.4th 96, 98 (3d Cir. 2023) (en banc) (4

3 As explained infra, Section II.A, issuing that opinion contravened the Ninth

Circuit’s own precedent.

months); United States v. Jackson, 69 F.4th 495, 500 (8th Cir. 2023) (1 month);

United States v. Alaniz, 69 F.4th 1124, 1127 (9th Cir. 2023) (3 months). And the

panel expected this pretrial-release appeal to moot more quickly than others. PerezGarcia, 96 F.4th at 1174. Yet the panel did not act for 14 months, making mootness

inevitable.

Not only did this ensure that the panel’s decision would not affect the parties.

It also blocked further merits review, whether en banc or in this Court. Yet the

panel neither exercised discretion not to issue an opinion nor decided the case

narrowly. To the contrary, the panel “announc[ed] as much new law as possible in a

moot case where it was wholly unnecessary to do so, and then use[d] mootness as a

shield to argue against en banc review.” Perez-Garcia, 115 F.4th at 1008 (Vandyke,

J., dissenting in denial of rehearing en banc).

Third, in reaching that broad holding, the Ninth Circuit did not rely on the

history cited in the government’s filing—the only history to which the defense had a

chance to respond. Federal courts follow the “party presentation principle,” the

“premise that parties represented by competent counsel know what is best for them,

and are responsible for advancing the facts and argument entitling them to relief.”

United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). Under Bruen, that

means “decid[ing] a case based on the historical record compiled by the parties.” 597

U.S. at 25 n.6 (citing Sineneng-Smith).

But here, of approximately 20 historical sources cited by the panel, only four

appear in the government’s three pages’ worth of briefing on the non-law-

abiding/irresponsible/dangerous tradition. Ninth Circuit Case Number No. 2250314, Doc. 14, at 15-17. Instead, the panel seems to have adopted the sources cited

in the Solicitor General’s Rahimi briefing, filed weeks after the Perez-Garcia court

issued its order affirming. See Rahimi Merits Brief; Rahimi Certiorari Petition. Not

only did 18 of 20-odd sources appear in the Rahimi materials. The overlap includes

obscure sources like a Rhode Island newspaper from 1842, Convention of the

Suffrage men of Rhode Island, Vermont Gazette, Dec. 13, 1842; an 1840 legal

treatise, John Holmes, The Statesman, or Principles of Legislation and Law (1840);

and a list of eighteenth-century justice-of-the-peace manuals, e.g., The Compleat

Constable 68 (3d ed. 1708). That move was particularly troubling because it

suggests that the panel inverted the normal order of operations for reasoned judicial

decision-making. In implementing Bruen, courts are supposed to start with the

historical record, then derive appropriate traditions, and only then apply them to

the case at hand. 597 U.S. at 26-31. But here, the panel began by issuing an order

declaring the outcome, and then compiled its own historical evidence to support that

outcome.

To justify this approach, Judge Sanchez opined that a statute’s consistency

with historical tradition is a “question of law,” and judges are entitled to answer

that question using their own historical evidence. Perez-Garcia, 115 F.4th at 1005

(Sanchez, J., concurring in denial of rehearing en banc). It is not at all clear that

that is true, given this Court’s admonitions that “the Government . . . bears the

burden to justify its regulation,” Rahimi, 602 U.S. at 691 (cleaned up), by

“affirmatively prov[ing] that its firearms regulation is part of the [Second

Amendment’s] historical tradition.” Bruen, 597 U.S. at 19. But regardless, that

justification “rings hollow” here. Perez-Garcia, 115 F.4th at 1033 (Vandyke, J.,

dissenting in denial of rehearing en banc). As “none of these issues needed to be

addressed in an opinion at all,” it is hardly the case that “the panel was forced to do

its own research to help the government meet its burden to develop the historical

record in order to get the law right.” Id. Yet, “the panel here went out of its way to

decide issues it clearly did not need to decide, and then helped the government in

deciding those issues.” Id.

Fourth, despite adopting the Solicitor General’s sources and arguments in

Rahimi, the Ninth Circuit did not wait to hear what this Court had to say about

those very sources and arguments. Instead, having already delayed for over a year

until this Court’s term was almost over, the Ninth Circuit still issued its opinion

without the benefit of Rahimi. The panel therefore “needlessly analyzed our

tradition of disarming ‘dangerous’ individuals shortly before Rahimi was poised to

do the same.” Id. at 1015.

That has serious implications for how the Ninth Circuit will treat Rahimi

going forward. In cases vacated and remanded in light of Rahimi, lower courts will

be able to revisit Second Amendment challenges with new guidance and fresh eyes.

But if Perez-Garcia stays in place, Ninth Circuit panels will not have that

opportunity in the many cases where the government cites one of Perez-Garcia’s

broadly worded traditions. Instead, Perez-Garcia will bind future panels unless its

adoption of those various standards is “clearly irreconcilable” with Rahimi. Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003). The seven judges who concurred in the

denial of en banc rehearing have already opined that Perez-Garcia and Rahimi can

be reconciled. Perez-Garcia, 115 F.4th at 1006-07 (Sanchez, J., concurring in the

denial of rehearing en banc); but see supra, Section I.A. If they are right, then PerezGarcia—not Ninth Circuit judges’ best reading of Rahimi—will control.

In sum, the panel weighed in on a central question in a host of Bruen

appeals. It did so as a second, independent, and unnecessary alternative holding. It

waited to issue that opinion until after the case was moot. It relied on historical

arguments and sources that the government did not cite and to which the defense

had no opportunity to respond. And though it is apparent that the Ninth Circuit

found these sources in the Solicitor General’s briefing in Rahimi, it issued the

opinion just a few months before this Court expressed its views on those very

arguments. As a result, this case cannot receive further merits review, and absent

vacatur, future panels may very well have to follow Perez-Garcia over their best

understanding of Rahimi. These factors warrant equitable vacatur.

Alternatively, this Court should grant certiorari to resolve whether

courts can issue a judicial opinion after a case becomes moot.

Alternatively, this Court should grant certiorari to resolve the circuitsplitting jurisdictional question squarely presented in this case: May courts issue an

opinion after a case moots, so long as they provide the disposition beforehand?

The circuits are split on this question, and this case squarely

presents the issue.

“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and

‘controversies.’” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (quoting

U.S. Const., Art. III, § 2). When a case becomes “moot,” it is “no longer a ‘Case’ or

‘Controversy’ for purposes of Article III.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013). Accordingly, “[i]f a judgment has become moot while awaiting review, [a]

[c]ourt may not consider its merits.” Bancorp, 513 U.S. at 21.

In Bancorp, however, this Court held that mootness does not prescribe

complete judicial “paralysis.” Id. True, appellate courts may not “decide the merits

of a legal question not posed in an Article III case or controversy.” Id. at 21. But

“reason and authority refute[d] the quite different notion that a federal appellate

court may not take any action with regard to a piece of litigation once it has been

determined that the requirements of Article III no longer are (or indeed never were)

met.” Id. If that were true, an appellate court could never “hold[] that a district

court lacked Article III jurisdiction in the first instance, vacate[] the decision, and

remand[] with directions to dismiss.” Id. Courts would be equally “powerless to

award costs, or even to enter an order of dismissal.” Id. (cleaned up).

This Court held that Article III does not require that result. It prevents

courts only from considering a case’s “merits.” Id. Courts may still “make such

disposition of the whole case as justice may require.” Id. (cleaned up). “As with other

matters of judicial administration and practice reasonably ancillary to the primary,

dispute-deciding function of the federal courts, Congress may authorize [courts] to

enter orders necessary and appropriate to the final disposition of a suit that is

before [the court] for review.” Id. at 22 (cleaned up).

After Bancorp, then, it is uncontroversial that when courts publish a

reasoned judicial opinion before a case moots, they may decide whether or not to

vacate that decision. But the circuits have split on a related question: May the court

publish a reasoned judicial opinion after the case moots, so long as the court

provides the case’s disposition while the case is still live?

The Second Circuit has held that courts do have that authority. In In re

Grand Jury Investigation, a district court ordered a chief legal counsel to testify

before a grand jury about private conversations she had with Connecticut’s

governor. 399 F.3d 527, 528 (2d Cir. 2005). On appeal, the Second Circuit issued an

order reversing and stating that an opinion would follow. Id. Before the opinion

issued, however, the case mooted. Id. at 528 n.1.

The Second Circuit nevertheless published the opinion, holding that “the

mootness doctrine does not require either that we vacate our prior order or refrain

from issuing this opinion.” Id. Citing Bancorp, the Second Circuit noted that it was

not required to vacate the original reversal order, issued while the case was still

live. Id. “If this is true,” the court reasoned, “it follows that we may explain the

reasons behind that previously-issued decision, especially where such an

explanation was contemplated in the original order.” Id.

The Ninth Circuit panel in Perez-Garcia adopted the same reasoning. “By

publishing the reasoning underlying our prior order,” the court said, “we merely

explain the basis for our decision and do not take further action on the merits of

Appellants’ claims.” Perez-Garcia, 96 F.4th at 1173. “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.” Id.

A prior panel of the Ninth Circuit, however, had reached the opposite

conclusion. In EPIC, a district court issued a preliminary injunction in September.

257 F.3d at 1073. It learned the following February that the case was moot. Id. at

1074. In March, it issued an opinion supporting the September injunction. Id. In

May, it dismissed the case as moot and entered judgment. Id. It declined to vacate

the March opinion, however, stating that that opinion “adjudicated the issues raised

by the parties” in September. Id. On appeal, the enjoined party—who had

ultimately won dismissal—argued that it was nevertheless “aggrieved” by the

district court’s refusal to vacate the March opinion. Id. at 1075.

The Ninth Circuit held that the party was aggrieved, on account of “the

district court’s decision to flout the dictates of Article III and render an opinion in

spite of knowing the cause was moot.” Id. at 1077. “Article III of the Constitution

prohibits federal courts from taking further action on the merits in moot cases,” the

court explained. Id. at 1076. “Without jurisdiction the court cannot proceed at all in

any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the

only function remaining to the court is that of announcing the fact and dismissing

the cause.” Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 882

(1998)). The court accordingly vacated the “order, filed after the case had become

moot, outlining the district court’s reasons for granting [the] preliminary

injunction,” instructing that the district court “vacate its statements on the merits

of EPIC’s case made after there was no longer an Article III case or controversy.” Id.

at 1073. Though decided in a different procedural posture, then, EPIC holds that

courts lack Article III authority to “outlin[e] . . . reasons” for issuing a prior order or

make “statements on the merits” after a case moots, id.—the practice approved in

In re Grand Jury Investigation and Perez-Garcia.4

The D.C. Circuit took a position falling between the Second Circuit’s stance

and—until Perez-Garcia created an intra-circuit split—the Ninth Circuit’s view. It

held that courts do have Article III authority to issue opinions in these

circumstances, but that they must refrain for prudential reasons. Coal. to End

Permanent Cong. v. Runyon, 979 F.2d 219 (D.C. Cir. 1992); cf. Elk Grove Unified

Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (distinguishing “Article III standing,

which enforces the Constitution’s case-or-controversy requirement, and prudential

standing, which embodies judicially self-imposed limits on the exercise of federal

jurisdiction” (cleaned up)); but see Lexmark Int'l, Inc. v. Static Control Components,

4 The Perez-Garcia panel distinguished EPIC on the sole ground that the district

judge there made the challenged statements “after it entered judgment dismissing

the case as moot,” while the Perez-Garcia panel explained its order before rendering

judgment. Perez-Garcia, 96 F.4th at 1173 n.6. That is factually wrong. The court in

EPIC issued the aggrieving opinion in March, before dismissing the case as moot and

entering judgment in May. 257 F.3d at 1073-74. Thus, the courts in EPIC and PerezGarcia each issued the opinion after mootness but before judgment.

Inc., 572 U.S. 118, 125-128 & n.3 (2014) (questioning concept of “prudential”

standing).

In Runyon, a split D.C. Circuit panel declared a statute unconstitutional and

stated that expanded opinions would follow. Id. at 219. Before the opinions issued,

however, Congress repealed the statute. Id. at 219-20.

The majority held that the development “render[ed] it imprudent for [the

court] to issue expanded opinions.” Id. The majority believed that it had

“‘jurisdiction’ to do so, because [the court] reserved this in [the] judgment.” Id. at

220. But “[p]rudence” led the court “to refrain.” Id. The majority feared making

“pronouncements about the constitutionality of a repealed provision in a moot case

with no possibility of Supreme Court review,” thereby “creating circuit precedent

regarding questions of constitutional law.” Id. In the majority’s view, “several of the

reasons behind the mootness doctrine and the bar against rendering advisory

opinions—concern with the need to avoid unnecessary judicial lawmaking, and the

fear that courts may be more prone to improvident decision when nothing

immediate seems to be at stake—counsel strongly in favor of restraint.” Id. (cleaned

up).

Judge Silberman dissented on the ground that “the single most important

restraint on the decisions of judges is the tradition that we explain our decisions in

writing.” Id. at 220 (Silberman, J., dissenting). His own commitment to that

principle led him to publish what he would have said in dissent. Id. In so doing, he

mused about what would have happened if one of his colleagues had changed their

mind after reading that dissent and joined him in upholding the statute. Id. at 221.

“Can we, in other words, add to the legal significance of our prior judgment after the

case is (arguably) moot?” he asked. Id. But he did not venture an answer.

Finally, the Eighth Circuit and the Court have each previously issued an

opinion after a case mooted. Ex parte Quirin, 317 U.S. 1, 23, modified sub nom. U.S.

ex rel. Quirin v. Cox, 63 S. Ct. 22 (1942); Little Rock Sch. Dist. v. Pulaski Cnty.

Special Sch. Dist. No. 1, 839 F.2d 1296, 1299 (8th Cir. 1988). In neither case,

however, did the opinion address the jurisdictional question. These decisions do not

deepen the split, as “[q]uestions which merely lurk in the record, neither brought to

the attention of the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents.” Gann v. United States, 142 S. Ct. 1, 2 (2021)

(cleaned up). But they still serve to illustrate that, without further clarification,

courts may unwittingly issue decisions of at least questionable constitutional

validity.

In sum, the circuits are split on this question, and this case squarely presents

it. This Court should grant certiorari to resolve this disagreement about whether

courts must refrain from issuing decisions in moot cases, either for jurisdictional or

for prudential reasons.

The opinion below is wrong, and this case illustrates both the

imprudence of that view and the importance of this question.

Certiorari is especially appropriate in this case because the panel’s Article III

holding was wrong, and in adopting it, the panel illustrated the truth behind the

D.C. Circuit’s prudential concerns.

Courts’ authority to act in moot cases is limited by Article III, which confines

exercises of the “judicial power” to live cases and controversies. Valley Forge

Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S.

464, 471 (1982). That is why courts may not “decide the merits of a legal question”

after a case moots, Bancorp, 513 U.S. at 21: To do so would be an unauthorized

exercise of judicial power. To accept the Second Circuit’s and Perez-Garcia panel’s

position, then, one would have to conclude that exercising the judicial power on

appeal exclusively entails announcing whether the decision below is affirmed or

reversed. On this view, “explain[ing] the basis” for that disposition—even in a

lengthy, published decision that interprets the Constitution—does not constitute

“tak[ing] further action on the merits.” Perez-Garcia, 96 F.4th at 1173.

That narrow view of the judicial power contradicts fundamental conceptions

of Article III. “[T]he Framers’ understanding of the judicial function” assumed that

“the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of

the courts.’” Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2257 (2024)

(quoting The Federalist No. 78, at 525 (A. Hamilton)). In line with that view,

Marbury v. Madison held that judicial power encompassed the authority not just to

say what a case’s outcome is, but to “say what the law is.” 1 Cranch 137, 177 (1803).

Marbury made clear that that power involved both the disposition and the

underlying legal reasoning. “As [Chief Justice] Marshall explained, ‘[t]hose who

apply the rule to particular cases, must of necessity expound and interpret that

rule.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-41 (2006) (quoting

Marbury, 1 Cranch at 177).

Marbury therefore “grounded the Federal Judiciary's authority to exercise

judicial review and interpret the Constitution on the necessity to do so in the course

of carrying out the judicial function of deciding cases.” Id. at 340 (emphasis added).

Accordingly, “[i]f a dispute is not a proper case or controversy, the courts have no

business deciding it, or expounding the law in the course of doing so.” Id. at 341

(emphasis added). It follows that in moot cases, courts may not issue judicial

opinions that expound the law and interpret the Constitution.

This theoretical point has a practical side. Ordinarily, appellate courts

exercise their most far-reaching powers not by disposing of individual cases, but by

enunciating legal principles that control all future cases. Here, the pre-mootness

order affirming petitioners’ pretrial release conditions affected only them. But the

43-page post-mootness opinion has the potential to shape every Second Amendment

case that comes after. That was the panel’s express goal: to give “the legal

community as a whole . . . the benefit of an appellate court decision that adjudicated

properly presented questions concerning specific constitutional rights.” PerezGarcia, 96 F.4th at 1174 (cleaned up). It makes little sense to say that affirming two

orders is an exercise of the judicial power, but settling constitutional questions for

an entire legal community is not.

The Second Circuit’s and the Perez-Garcia panel’s contrary reasoning fails to

persuade. Both observed that they had the power to issue their original orders

affirming or reversing. In re Grand Jury, 399 F.3d at 528 n.1; Perez-Garcia, 96

F.4th at 1173. Both further noted that they had discretion not to vacate that order

after the case mooted. In re Grand Jury, 399 F.3d at 528 n.1; Perez-Garcia, 96 F.4th

at 1173. Because they properly issued the order and properly exercised their

discretion to preserve it, the courts reasoned, they must also have the power to

“explain” it. In re Grand Jury, 399 F.3d at 528 n.1; Perez-Garcia, 96 F.4th at 1173.

But that does not follow. The Perez-Garcia panel had authority to issue the

order affirming because, at the time, the appeal presented a case or controversy. See

Bancorp, 513 U.S. at 21. The panel had discretion over whether to vacate the order

after the case mooted because—similar to awarding costs, remanding to a lower

court, or issuing the mandate—vacatur is “ancillary to the primary, disputedeciding function of the federal courts.” Id. at 21-22 (cleaned up). But neither

justification applied to the panel’s 43-page reasoned decision. At that point, no case

or controversy existed. And issuing a reasoned decision is not “ancillary” to courts

“primary, dispute-deciding function.” Id. Like any judicial opinion, the Perez-Garcia

opinion was devoted entirely to deciding the parties’ disputes.

It also bears noting that, at least in this case, the Perez-Garcia opinion did

not merely explain what the court was thinking in January 2023, when it affirmed

the pretrial release orders. Instead, in the months following oral argument, the

panel did extensive independent research to unearth sources not known to the panel

in January. See Perez-Garcia, 115 F.4th at 1005-06 (Sanchez, J., concurring in

denial of rehearing en banc). That included an apparent review of the government’s

briefs in Rahimi, the earliest of which became available weeks after the panel

affirmed. See Rahimi Certiorari Petition. Thus, the panel was not merely

committing to paper reasons already in mind. It was actively accumulating new

information, constructing new legal arguments, and reaching new conclusions.

There is little reason to suppose that that process stopped when the case became

moot, as the panel took another four months to issue the opinion. Any future court

that uses this procedure will face the temptation, and even the practical necessity,

to do the same.

This reality highlights a significant prudential problem with the Second

Circuit’s and Perez-Garcia panel’s view. This procedure encourages courts to rush to

a disposition before the case moots, and only then develop their reasoning. Putting

the explanation first not only assures the parties that “the judge’s ruling is based on

the facts and the law” rather than policy preferences, but also “allows the judge to

confirm that his ruling is correct.” United States v. Hernandez-Meza, 720 F.3d 760,

767–68 (9th Cir. 2013). “If he is unable to articulate a plausible rationale for his

ruling, he may think better of it.” Id. But if the case moots in between the

disposition and the opinion, it is not clear that a judge retains the power to change

their mind during the opinion-writing process. Consider Judge Silberman’s query in

Runyon: What would have happened if his colleagues read his post-mootness

dissenting opinion—and found that they agreed? Runyon, 979 F.2d at 221.

Finally, the D.C. Circuit was right to fear that courts might be “more prone to

improvident decision” when using this procedure. Id. at 220 (majority opinion).

Among other things, courts secure in the knowledge that their decision cannot

receive further merits review may act with less restraint. Many far-reaching and

controversial cases have a high probability of mooting, including those involving

executive orders, administrative actions, and abortion. See, e.g., Mayorkas v.

Innovation L. Lab, 141 S. Ct. 2842 (2021); Trump v. Hawaii, 583 U.S. 941 (2017);

Garza, 584 U.S. at 729. A court applying this mootness procedure will, at worst, see

its opinion vacated. At best, the opinion will serve as unassailable precedent until

another case reaches the en banc or certiorari stage. In these circumstances, the

temptation to issue a sweeping opinion may exert a stronger pull than the more

modest virtues of judicial restraint. This Court should reaffirm that this imprudent

procedure is not available in the federal courts.

CONCLUSION

For these reasons, the Court should grant the petition for a writ of certiorari.

Respectfully submitted,

Dated: December 20, 2024

s/ Katie Hurrelbrink

KATIE HURRELBRINK

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101-5008

Telephone: (619) 234-8467

Attorneys for Defendant-Appellant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.