Legislative Amendment and Mootness under the Second Amendment
On January 22, an en banc panel of the Ninth Circuit issued a decision in Teter v. Lopez—a Second Amendment challenge to Hawaii’s regulation of butterfly knives—finding that the Hawaii legislature’s recent amendment of the challenged statute mooted the case and remanding for further proceedings. A panel had previously invalidated the law in a decision that Jake Charles covered here (this earlier post by Flora Lipsky discusses the panel oral argument in the case). The full circuit then voted to vacate the panel decision and re-hear the case en banc. Around the same time, the Hawaii legislature considered and ultimately passed a law that amended the challenged provision to prohibit only concealed carry (not possession) of butterfly knives. The en banc panel heard argument on June 25, 2024. But the focus of the appeal understandably shifted to the threshold question of what impact Hawaii’s midstream amendment should have on the case. And the splintered January 22 decision concluded that the amendment rendered the case moot without prejudice to the plaintiffs re-filing any remaining viable claims at the district court level, illustrating an interesting interplay between subsequent legislative action and mootness under Bruen’s historical test.
As the original panel decision noted, a butterfly knife is a bladed weapon resembling a pocket knife with a “handle [] split into two components” that enables a user to open the knife with a single hand. Pursuant to a law first enacted in 1993, Hawaii broadly criminalized possessing, distributing, and carrying such knives:
Whoever knowingly manufactures, sells, transfers, possesses, or transports in the State any butterfly knife, being a knife having a blade encased in a split handle that manually unfolds with hand or wrist action with the assistance of inertia, gravity or both, shall be guilty of a misdemeanor.
After the panel decision and while the en banc petition was pending, the speaker of the Hawaii state house of representatives introduced a bill proposing to amend the statute. That bill, which was ultimately signed into law in May 2024, amended the above provision to read:
Whoever knowingly carries concealed on the person, or in a bag or other container carried by the person, any butterfly knife shall be guilty of a misdemeanor.
Given this amendment, the en banc panel’s first task was to consider whether the matter still involved an active “case or controversy” as required by Article III for federal court jurisdiction. Specifically, the question was whether and when a defendant (here, the state of Hawaii) can moot a case by voluntarily stopping the conduct over which it is being sued. The en banc majority noted that “the repeal, amendment, or expiration of challenged legislation is generally enough to render a case moot and appropriate for dismissal.” Thus, the majority said, the burden was on the plaintiffs to show a “reasonable expectation” that the Hawaii legislature might re-amend the statute to its original form and resume enforcement of the possession ban. The plaintiffs failed to make that showing, the majority said, and any possible remaining challenges to the amended law—including whether distinguishing between open and concealed carry is possible for butterfly knives and whether a concealed carry ban is consistent with historical tradition—must be relitigated at the trial court level to develop the necessary factual record. Therefore, the majority vacated and remanded the case but without instructions to dismiss, and recognizing that plaintiffs are free to re-file any Second Amendment challenges to the amended law.
Three judges dissented, in two separate opinions. Judge Collins, joined by Judge Lee,[1] would have applied the mootness test as a higher bar for the state and required a “governmental defendant . . . to satisfy the same ‘formidable burden’ [of showing the harm is not reasonably likely to recur] required by settled voluntary-cessation principles.” This higher standard was appropriate under the Supreme Court’s voluntary-cessation case law, Judge Collins said, and would properly place the burden on the state (not plaintiffs) “to establish that reenactment of a similar law cannot reasonably be expected to occur.” Therefore, Judge Collins would have preceded to the merits on the plaintiffs’ Second Amendment challenge to the original law and reinstated the panel decision invalidating the ban. Judge Collins noted that this would “leave open, for remand, any issue of a possible amendment of the complaint to specifically address whether the amended statute’s more narrowly drawn provisions also violate the Second Amendment” and pointedly “express[ed] no view on that point.”
Judge VanDyke also dissented. He concurred in Judge Collins’ analysis of the mootness issue but wrote separately to emphasize his view that “this court’s practice of automatically vacating panel opinions upon the grant of rehearing en banc creates perverse incentives for government defendants” and that, “even if the majority was correct that this case is moot, . . . reinstating the panel’s judgment and remanding the case [] would still be the proper remedy here.” In other words, Judge VanDyke believes that vacating and remanding the case at this point improperly rewards strategic gamesmanship by Hawaii. Judge VanDyke explained that Munsingwear vacatur—which kicks in to vacate a decision on appeal mooted by subsequently voluntary conduct when necessary to “discourage parties from taking strategic action designed to lock in the effect of a favorable judgment”—typically applies only when a decision is on appeal to a higher court (not in the middle of the en banc process) and when the litigation is mooted by the party that prevailed at the lower level (here, the plaintiffs). Moreover, Judge VanDyke wrote, the Ninth Circuit’s practice of automatically vacating the panel decision whenever it takes a case en banc—rather than leaving the panel decision in place or staying it pending the en banc decision—creates “perverse incentives [] for parties like Hawaii.”
Thus, according to Judge VanDyke, the Ninth Circuit makes it uniquely easy for government litigants to game the system:
[A]ll they need to do is wait until after they have secured rehearing en banc, thereby ridding themselves of the panel opinion by automatic vacatur, and then strategically amend challenged laws to moot the plaintiffs’ claims. Then, such government defendants can sit back and relax, assured that their amendments will shield them from the risks associated with any en banc reconsideration of the merits. And once the en banc panel compliantly plays along and dismisses the case, the government is then free to reenact the very law the panel only recently declared unconstitutional.
Judge VanDyke observed that, in his view, it is questionable “whether states like Hawaii are entitled to [a] presumption of regularity (at least in Second Amendment cases) given their well-documented intransigent responses to the Supreme Court’s decision in [Bruen].” To guard against this form of mischief, Judge VanDyke would “adopt a presumptive policy of vacating [] prior vacatur orders, thereby reinstating the precedential value of the panel’s opinion, whenever an en banc petitioner takes deliberate action that moots a case after rehearing en banc is granted.”
Cutting through some of the more arcane procedural back-and-forth here, the judges seem to agree both that (a) Hawaii’s amendment of the provision changes the case in a substantial way and cuts off at least some of the plaintiff’s core Second Amendment claims that were based on a professed desire to merely possess butterfly knives, and (b) that the case should be sent back down to the district court level for factual development on any remaining viable claims which have not been fully briefed or argued as of this point (including whether the carry ban is consistent with history). The dispute, then, centers on:
- Whether Hawaii should be taken at its word that the state won’t now seek to reenact a possession ban, or who should bear the burden (and at what level) of showing a reasonable possibility of reenactment; and
- Whether the original panel decision should be reinstated along with a remand.
As to the first issue, it seems extremely implausible that Hawaii will reenact a butterfly-knife possession ban. As a practical matter, doing so would almost certainly doom the state in the inevitable resulting litigation because the challengers could then point to the state’s behavior as proof the state itself believes the possession ban is likely unconstitutional (otherwise, why else would Hawaii have amended the law when it did?). This course of action would also severely undercut Hawaii’s credibility before a circuit in which the state is a repeat litigant. And it’s just not all that convincing to view general animosity toward Bruen—which certainly exists in some form in the Hawaii legislature and judiciary—with a willingness to engage in a prolonged cat-and-mouse routine to evade judicial review of a statute that the state didn’t enforce all that vigorously to begin with.[2]
Moreover, the Supreme Court precedent invoked in both dissenting opinions for the proposition that government defendants must satisfy a “formidable burden” to prove mootness via voluntary cessation of challenged conduct—the Court’s recent decision in FBI v. Fikre—feels inapposite in key respects. Fikre dealt with a due process challenge to inclusion on the federal government’s “no fly” list. The government later removed Mr. Fikre from the list, asserted that he would not be re-added based on current information, and argued that the litigation was therefore moot. The Court rejected this argument, finding that “the government’s sparse declaration falls short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past.” But Fikre is different from Teter in at least one crucial way: the “no fly” list remained active throughout and there was never any suggestion of amending the substantive criteria for inclusion or scrapping the list entirely. That seems at least relevant, in that the inquiry into “reasonable expectation” of future recurrence must account for the difference in kind between re-adding someone to an existing government-maintained list and re-enacting portions of a statute that have been removed by legislative amendment. It’s much easier for the federal government to place Mr. Fikre back on the “no fly” list than it is for the Hawaii legislature to enact an entirely new statute—and the mootness inquiry should appreciate that distinction.
On the question of what to do with the original panel decision, however, I think Judge VanDyke has the better of the argument. As he observes, “presumably Hawaii would have no objection to reinstating the panel’s opinion because, as it argues in its suggestion of mootness, that opinion apparently does not cast doubt on any part of its amended butterfly knife ban.” And, indeed, the panel opinion placed great weight on the difference between banning the possession of Bowie knives and the public carrying of such weapons—noting that “[t]he vast majority of the statutes cited by Hawaii prohibited the concealed carry of bowie knives, Arkansas Toothpicks, dirks, daggers, or other ‘deadly weapons.’”[3] Reinstating the panel opinion has the added advantage, Judge VanDyke notes, of avoiding the arguably inequitable situation where a government imposes an unconstitutional restriction, loses in court, and then amends the restriction to remove the unconstitutional aspect(s) but escapes without any adverse opinion as to the original, unconstitutional action. Hawaii banned the possession of Bowie knives outright from 1993 through 2024 and, accepting the panel’s analysis, that restriction was unconstitutional. Without a contrary merits determination from the en banc panel, reinstating the panel opinion is the only way to hold Hawaii to account for infringing upon constitutionally protected conduct.
[1] Judges Collins and Lee were members of the original panel that struck down the law in August 2023.
[2] According to the panel opinion, from 2012 to 2023 Hawaii arrested or cited approximately 30 people for possessing a butterfly knife—an average of about 2-3 people per year.
[3] This assumes butterfly knives are protected “arms” at step one. As Jake suggested in his initial post, the panel decision took an expansive textualist view of the word “arms” and did not inquire into common use at step one, departing from most other courts to consider the question.