When Is the Government Done Violating Your Rights?

Anthony Sanders · December 3, 2019

We at the Center for Judicial Engagement continually encourage judges to not let the government off the hook simply because it’s the government. That’s basically what “judicial engagement” means. Generally it comes up in the context of judges ruling on whether the government has violated the Constitution. A serious inquiry is judicial engagement. A formulaic decision for the government is judicial abdication. But before this inquiry, plaintiffs have to convince the court that it can rule on the merits in the first place. If plaintiffs lose at that first level, it’s game over. And at that first level, judges can either engage or abdicate, just like they can on the merits.

These first level questions have acquired various labels—mootness, ripeness, standing, abstention, etc., etc. One labeled “mootness” reared its head at the Supreme Court yesterday in a gun rights case, New York State Rifle & Pistol Association v. City of New York.

The case illustrates what the government will do to try and prevent judges ruling on the constitutionality of laws, and how it is especially important for judges to resist those tactics.

Five years ago three New York City residents filed a lawsuit challenging the city’s gun-carry rules. All three had a permit to own a gun, and all three with that permit could transport their guns—locked and unloaded—to firing ranges elsewhere in the city. But, they could not transport those same guns—again, locked and unloaded—to firing ranges outside of city limits, or to second homes. These arbitrary restrictions do not protect public safety. It makes no difference, of course, whether you go to a firing range in Queens (legal) or in New Jersey (illegal). They therefore needlessly frustrate the gun owners’ Second Amendment rights.

After losing in the lower courts and the city not giving up, the gun owners petitioned for the Supreme Court to take their case. Which it did. And then, the city quickly repealed the rules, allowing the gun owners to transport their guns to the places they claimed they wanted to in the lawsuit, but nothing more. Did the city have a change of heart? Hardly. It feared a Supreme Court opinion that could expand Second Amendment rights even beyond the challenged rules. And, not only did the city change the rules, but New York State (with the same motivation) passed a law cementing the new rules into state law.

The city now argues the case is “moot,” meaning there’s nothing left for the Court to do because the gun owners can now bring their guns to the locations they specified in their lawsuit.

But that’s not all the gun owners are asking for. They want a ruling declaring the former law unconstitutional and forbidding the city from enforcing it in the future. Why?  Because there’s nothing preventing New York State and the city from reversing their recent actions and putting the law back on the books. If that happens it would take a new lawsuit, that might take another five years, to make things right.

And because of those kinds of bait-and-switch tactics, the Court has developed something called the “doctrine of voluntary cessation.” This prevents defendants in lawsuits—including when the defendant is the government—from stopping challenged behavior to moot a case, only to pick it up again afterward. It’s a pretty high bar for defendants to overcome: A court can still rule on an issue unless it is absolutely clear that the challenged activity cannot reasonably be expected to occur. Considering how fast the city and state changed this law, and how fast they could change it back, nothing seems absolutely clear, at all.

But if what happened yesterday at oral argument is any indication, it seems that the Court may not apply the doctrine of voluntary cessation here—with the result that the gun owners won’t get a decision on the merits of their constitutional claim. Even if you disagree with the gun owners on the merits, this result is nothing to cheer for. After all, it’s not just gun owners in New York City who need the voluntary cessation doctrine to protect their rights. It’s civil forfeiture victims, where the government wrongfully holds onto a truck for over two years, gives it back after the owner finally files suit, and then tries to get out of a constitutional ruling. It’s students who challenge a campus speech code that vaguely prohibits all kinds of traditionally protected speech, only to have the University abruptly change the policy, which could be changed right back once the lawsuit’s over.

Judicial engagement means not cutting the government a special deal in the courtroom, and that includes not letting it cut and run when it is poised to lose there.  Especially when the Constitution is on the line.