Joe Davis and Nick Reaves are Counsel at the Becket Fund for Religious Liberty, which filed an amicus brief in support of neither party in New York State Rifle & Pistol Association v. City of New York. The views expressed below are their own and may not reflect the views of Becket (which takes no position on the scope of the Second Amendment or the merits of this case) or its clients. You can read a fuller treatment of this issue in their Yale Law Journal Forum Essay.

After granting certiorari in New York State Rifle & Pistol Association v. City of New York to address the scope of the Second Amendment for the first time in nearly a decade, the Supreme Court stumbled across another important question on the way to oral argument: When does a government defendant’s mid-litigation change to a challenged policy moot a case? While perhaps less riveting than the original question put to the court (though it did prompt an explosive amicus brief by Senator Sheldon Whitehouse, D-R.I.), this question is important to litigants across the country seeking to protect and vindicate their rights against the government. That’s as true for religious liberty as it is for the Second Amendment rights invoked in this case, which is why the Becket Fund for Religious Liberty filed an amicus curiae brief.

This case began with a challenge by the New York State Rifle & Pistol Association to New York City regulations limiting the ability of gun owners to transport their firearms outside city limits. Initially, the city was winning: It prevailed both in the district court and before the U.S. Court of Appeals for the 2nd Circuit. But then the Supreme Court granted certiorari. Conventional wisdom suggested that this spelled trouble for restrictive gun regulations nationwide, as it would give the Supreme Court a chance to address what some have characterized as consistent underenforcement of the Second Amendment in the lower courts.

Rather than simply fighting on in court, New York City’s bureaucrats swung into action. The city first amended its gun regulations to permit transportation to the specific locations the plaintiffs had named in their lawsuit—and not one location more. The state of New York also amended its licensing statute to require localities to allow permit-holders to transport their guns to the same locations. The city then filed a Suggestion of Mootness with the Supreme Court, explaining why, because of these changes, the petition the justices had just granted was now moot and should be dismissed. Tellingly, however, the city hasn’t changed its position on the regulations’ legality, still defending them on the merits. The reason for the new laws, then, is clear: The city sought to evade Supreme Court review and thus avoid what it feared would be a precedent-setting setback for its view of the Second Amendment.

This isn’t the first time a government has sought to strategically moot a case by changing a controversial policy—which is why Becket chose to get involved. Unfortunately, we’ve seen government entities all too often use mootness to disadvantage religious minorities. For example, prison systems will litigate prison-conditions cases (requests for kosher food, prayer books, etc.) against pro se inmates to conclusion, often winning. But, when a prisoner is represented by competent counsel, prisons will try to moot the very same claims to avoid a loss (giving the prisoner the bare minimum necessary to make their claims disappear, often without changing their discriminatory policy).

Should this be allowed?

The answer depends on how courts view the voluntary-cessation doctrine. Under that doctrine, if a defendant voluntarily ceases challenged conduct during litigation, the case will become moot only if the defendant shows it is “absolutely certain” that the conduct will not resume. Although the Supreme Court has consistently applied this high standard, some lower courts have gone in a different direction when the litigant changing its conduct is the government. According to these courts, government actors are “public servants, not self-interested private parties” and thus are presumed to act in good faith. As a result, some lower courts conclude that mid-litigation changes to a challenged law will always moot a case unless the challenger can show a strong likelihood that the revoked policy will be reenacted—flipping the burden from the party seeking to moot the case to the party seeking to keep it alive. By our count, at least six courts of appeals have lightened the burden on governments trying to moot cases (though some courts are predictably inconsistent in their articulation of the standard).

New York City relied in part on this line of cases, arguing that because it changed its challenged policies the dispute between NYSRPA and the city no longer presented a live controversy. As it explained, “the City no longer has any stake in” the outcome of the case because its law changed. The city also argued that it was forbidden from resuming its challenged conduct because of the change in state law.

In response, NYSRPA has argued, among other things, that the revised city and state laws do not moot the case because the plaintiffs would never have agreed to these “miserly” changes in the law, pointing to several allegedly live disputes over the scope of the changes and whether or not they actually give the plaintiffs all that they asked for. In the alternative, NYSRPA also argues that the city’s “unilateral and voluntary” mid-litigation course correction, along with the city’s “undisguised purpose to frustrate this Court’s review,” still justify “injunctive relief to foreclose the possibility that the City could return to its ways.” Last month, the court denied the city’s Suggestion of Mootness, but asked the parties to be ready to address the mootness issue at oral argument.

However the court ultimately resolves this mootness dispute, one thing is clear: The court should reject the notion that the voluntary-cessation standard applies with less force to government defendants. The court itself has never suggested that government defendants should get special treatment in deciding whether a mid-litigation change in the challenged conduct moots the case. And Pollyanna-ish deference to the motives of government litigants runs counter to law and logic. As we explain more fully in an essay in the Yale Law Journal Forum, the unique characteristics of government defendants make them more likely than private defendants to make mid-litigation policy changes for reasons of strategy rather than contrition—suggesting that they should bear the same heavy burden of proving mootness as everybody else.

That’s so for a couple of reasons. For one, government defendants are repeat litigants who live perpetual lives, giving them more incentive than private actors to engage in the sort of strategic-mooting behavior that the voluntary-cessation doctrine is designed to prevent. Government defendants know that even if they cease challenged conduct to moot one case, they’ll always be around to try again in the future. And even if government officials don’t intend to change course later, they are subject to replacement with every election—and often one of the first orders of business for a new government official is reversing the actions of her predecessor.

On top of this, government defendants are more often able to moot cases through voluntary cessation. Claims for damages can’t be mooted by a defendant’s mid-litigation change in conduct (because they seek compensation for past harm). But due to various constitutional and statutory immunity rules, litigants often can’t bring damages claims against government defendants, meaning that claims against the government (most often for forward-looking relief) are more susceptible to mooting.

Finally, strategic mooting by government defendants is especially problematic. For example, it can leave important questions of constitutional law unsettled—a harm in itself, and also an obstacle to the buildup of precedent needed to overcome qualified immunity and enforce constitutional rights in future cases.

Whether and how the court might address the mootness question is impossible to know, but regardless of the approach the court takes, without a doubt it should reject a double standard favoring government defendants.

Posted in New York State Rifle & Pistol Association Inc. v. City of New York, New York, Symposium before oral argument in New York State Rifle & Pistol Association v. City of New York, Featured

Recommended Citation: Joe Davis and Nick Reaves, Symposium: So what exactly are the parties still fighting about in NYSRPA v. City of New York?, SCOTUSblog (Nov. 19, 2019, 1:00 PM), https://www.scotusblog.com/2019/11/symposium-so-what-exactly-are-the-parties-still-fighting-about-in-nysrpa-v-city-of-new-york/