Invoking the ‘Voluntary Cessation’ exception to the ‘Mootness Doctrine’ will allow SCOTUS review of NYSRPA v. NYC to proceed

April 18, 2019 | BUFFALO, N.Y. – On April 12, 2019, New York City Assistant Corporation Counsel Richard Dearing submitted a motion to U.S. Supreme Court Clerk Scott Harris “to request that the Court stay the current briefing schedule” for NYSRPA v. NYC. The NYSRPA case challenges the city’s ban on transferring even licensed, unloaded guns anywhere outside the city limits – including to a weekend home or shooting range for target practice – restrictions NYSRPA describes as “draconian.”

The U.S. Supreme Court (SCOTUS) agreed to hear NYSRPA v. NYC on January 22, 2019, and oral arguments are expected to proceed during the Court’s Fall 2019 term. However, New York City is trying to stop that from happening.

In his motion to the Court, Dearing states “The proposed rule would amend S 5-23(a) to allow premises licensees to transport a handgun listed on their premises license directly to and from any of the following additional locations, provided that the handgun is transported unloaded, in a locked container, with the ammunition carried separately:

• Another premises of the licensee where the licensee is authorized to have and possess a handgun;
• A small-arms range/shooting club authorized by law to operate as such, whether located within or outside New York City; and
• A shooting competition at which the licensee may possess the handgun consistent with the law applicable at the place of the competition.”

In essence, Dearing is saying that, because the city is considering a yet-to-be-adopted change to its firearms transport rule that resolves the concerns raised by NYSRPA in its case against the city, the legal dispute should not be permitted to continue because “the Court could not grant petitioners any effective relief.”

Why are Dearing and the city making this argument and voluntarily walking back their firearms transport rule? It is because they recognize that SCOTUS justices likely would not agree to hear the NYSRPA case if they did not intend to reverse New York City’s draconian firearms transport rule. If the Court intends to reverse the rule, they’ll likely need to assess the appropriateness of judicial review currently allowing it to survive constitutional scrutiny. If the Court reviews the current level of judicial review (intermediate scrutiny), it is likely to find that such review is insufficient to permit impingements on a constitutional right like the one protected by the Second Amendment, and proclaim that strict scrutiny is the appropriate level of judicial review for all Second Amendment cases.

If the above were to occur, as I stated on January 22, 2019 when SCOTUS agreed to hear the NYSRPA case, 2AWNY.COM’s cases against the New York State pistol permit regime and SAFE Act would proceed and severely damage if not totally eviscerate both unconstitutional gun control edicts, as neither are capable of surviving strict scrutiny review. The same would likely hold true for the state’s red flag law, safe storage law, and the vast majority of Albany’s imperial gun control designs.

The actions taken by New York City last week confirm that Second Amendment civil rights advocates are on track to score a major victory before the U.S. Supreme Court in 2019 – 2020, procuring the critical legal instrument required to destroy New York State gun control: strict scrutiny. New York City and, no doubt, Imperial Criminal Andrew Cuomo and his progressive acolytes, are terrified at such a prospect. This is why they are attempting to fashion the ‘Mootness Doctrine’ into a permanent obstruction for NYSRPA v. NYC.

What is the Mootness Doctrine? We can turn to the Congressional Research Service for an explanation. The Service states “A case pending before a federal court may at some point in the litigation process lose an element of justiciability and become ‘moot.’ Mootness may occur when a controversy initially existing at the time the lawsuit was filed is no longer ‘live’ due to a change in the law or in the status of the parties involved, or due to an act of one of the parties that dissolves the dispute. When a federal court deems a case to be moot, the court no longer has the power to entertain the legal claims and must dismiss the complaint. However, the U.S. Supreme Court over time has developed several exceptions to the mootness doctrine.”

That final sentence quoted above should cause alarm for New York City Assistant Corporation Counsel Richard Dearing, as one of the exceptions to the Mootness Doctrine – Voluntary Cessation – directly applies to the manner in which the city is attempting to obstruct NYSRPA v. NYC. Again, from the Congressional Research Service:

“If a defendant voluntarily terminates the allegedly unlawful conduct after the lawsuit has been filed but retains the power to resume the practice at any time, a federal court may deem the case nonmoot. The ‘heavy burden’ of persuading the court that a case has been mooted by the defendant’s voluntary actions lies with the party asserting mootness, and the standard for such a determination is a ‘stringent’ one: ‘if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can] not reasonably be expected to recur.’ This exception is supported by the Supreme Court because, in addition to ensuring that the defendant is not ‘free to return to his old ways,’ there is ‘a public interest in having the legality of the practices settled.’”

And there you have it. SCOTUS can easily employ the Voluntary Cessation exception to the Mootness Doctrine to keep NYSRPA v. NYC alive. This is due to the fact that the city, which has signaled intent to voluntarily terminate its allegedly unlawful conduct after the lawsuit against it has been filed, has made no commitment to divest itself of the power to reinstitute the current form of its firearms transport rule, which is most definitely unconstitutional, at a later date. Furthermore, a public interest in having the legality of the practices imposed by New York City’s current firearms transport rule assessed most certainly exists, for both officials overseeing other large U.S. cities who might otherwise commit a similar constitutional infringement, and for citizens living in said cities who might seek to resist a similar constitutional infringement.

New York City’s flimsy attempt to derail NYSRPA v. NYC is a good way to test the commitment of SCOTUS to Second Amendment litigation after a decade-long hiatus on the issue. Will the justices correctly invoke the Voluntary Cessation exception to the Mootness Doctrine and hear the NYSRPA case as anticipated, or will they fold under pressure from New York City’s far-left autocrats? If the latter, 2AWNY.COM’s legal challenges to the New York State pistol permit regime and SAFE Act remain active, and will most definitely be appealed to SCOTUS for review in place of NYSRPA v. NYC. The myriad legal challenges to New York State’s imperial gun control regime will continue to manifest themselves in the court system at every level for decades to come. Progressives will be granted no reprieve from this deluge, and New York’s Second Amendment civil rights renaissance will eventually prevail.

Steve Felano

2AWNY Civil Rights Advocate

HELP FIGHT EMPEROR CUOMO IN THE SUPREME COURT

2AWNY is a force multiplier for the numerous Second Amendment civil rights advocacy enterprises forming the backbone of Western New York’s vibrant gun culture. We act as a 2A news and information distribution, policy analysis, and organizational driver for the many interest groups seeking to defend and expand Second Amendment civil rights throughout the region. 2AWNY is dedicated to assisting in the organization, promotion, and funding of legal challenges to the unconstitutional New York State gun control regime. We seek to make Western New York the epicenter of New York State’s Second Amendment civil rights renaissance. Learn more at WWW.2AWNY.COM.