Conn. Citizens Def. League, Inc. v. Lamont ( 2021 )

20-2078
Conn. Citizens Def. League, Inc. v. Lamont
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 20-2078
CONNECTICUT CITIZENS DEFENSE LEAGUE, INC.; AMY JONES; TODD SKILTON; JOHN
LOWMAN; JOSEPH COLL; TANYSHA BROWN; DANIEL GERVAIS,
Plaintiffs-Appellees,
v.
NED LAMONT, JAMES ROVELLA,
Defendants-Appellants,
PAUL MELANSON, ANDREW COTA, BRIAN GOULD, JAMES KENNY,
Defendants.
ARGUED: MAY 21, 2021
DECIDED: JULY 28, 2021
Before: JACOBS, SACK, CHIN, Circuit Judges.
Connecticut Governor Ned Lamont and the state’s Commissioner of the
Department of Emergency Services and Public Protection (“DESPP”) James
Rovella appeal from an order of the United States District Court for the District
of Connecticut (Meyer, J.) granting a preliminary injunction (“PI”). In response
to the COVID-19 pandemic, an executive order permitted police agencies to
suspend collection of fingerprints in connection with applications for
authorization to obtain firearms. The PI ordered that the Governor repeal that
provision of the executive order and that the DESPP Commissioner resume
fingerprinting services at that agency. We vacate the PI on the ground that it was
issued without jurisdiction.
__________________
DAVID D. JENSEN, David Jensen PLLC, Beacon, NY, for
Plaintiffs-Appellees.
STEPHEN R. FINUCANE (Matthew B. Beizer, on the brief),
for WILLIAM TONG, Attorney General & CLARE KINDALL,
Solicitor General, for Defendants-Appellants.
DENNIS JACOBS, Circuit Judge:
Amid the COVID-19 pandemic, Connecticut Governor Ned Lamont
empowered police agencies to refuse to collect the fingerprints of applicants
seeking authorization to obtain firearms. In response, fingerprinting services
were suspended by several municipal police departments, as well as the state’s
Department of Emergency Services and Public Protection (“DESPP”). Because
fingerprinting is a prerequisite for an application for authorization to obtain
2
firearms in Connecticut, the plaintiffs claimed infringement of their Second
Amendment rights.
Five out of the six individual plaintiffs were turned away when they
sought fingerprinting at their respective local police departments, all of which
later agreed to resume fingerprinting services. The sixth individual plaintiff,
Daniel Gervais, succeeded in having his fingerprints collected, and received a
temporary permit from his local law enforcement agency. His allegation is that
DESPP refused to process his application for a more permanent “state” permit.
Organizational plaintiff the Connecticut Citizens Defense League, Inc. (“CCDL”)
is a non-profit that seeks to protect Second Amendment rights.
The United States District Court for the District of Connecticut (Meyer, J.)
issued a preliminary injunction (“PI”) ordering the Governor to require the
resumption of fingerprinting services and DESPP Commissioner James Rovella
(the “Commissioner”) to resume fingerprinting at that agency.
The Governor and Commissioner appeal on grounds of standing and on
the merits. We conclude that: (1) with respect to the individual plaintiffs, the PI
motion became moot in the district court; and (2) CCDL lacked organizational
3
standing. Because the motion was moot and CCDL lacked standing, the district
court had no jurisdiction to issue the PI. Accordingly, the PI is vacated.
I
A person seeking permission to obtain a firearm in Connecticut must
provide fingerprints to the appropriate authority to facilitate a criminal-history
check. See Conn. Gen. Stat. §§ 29-29(b), 29-36g(a), 29-37q(a). As relevant here,
the state offers three forms of authorization to acquire firearms:
1) a permit to “purchase,” “receive” and “carry” a pistol or revolver
(“pistol permit”), id. §§ 29-28(b), 29-33(b), 29-35(a);
2) a “handgun eligibility certificate,” which authorizes a person to
“purchase or receive” (but not to carry) a pistol or revolver, 1 id. §§ 29-
33(b), 29-36f; and
3) a long gun “eligibility certificate,” which authorizes a person to
“purchase or receive” a long gun, id. §§ 29-37a(c), 29-37p(a).
1We adopt the nomenclature used by the parties. Accordingly, the permit to
purchase, receive and carry a pistol or revolver is a “pistol permit”; and the
certificate of eligibility to purchase and receive a pistol or revolver is a “handgun
eligibility certificate.”
4
A Connecticut resident seeking a pistol permit must first apply to the local
“chief of police, or, where there is no chief of police, to the warden of the
borough or the first selectman of the town,” id. § 29-28a(a), for a temporary
permit and submit to fingerprinting, id. §§ 29-28(b), 29-29(b). The temporary
permit expires after 60 days and is non-renewable. Id. § 29-30(c). Once the
temporary permit is issued, the Commissioner may issue a “state permit,” which
expires after five years and can be renewed. Id. §§ 29-28(b), 29-30(c). A person
seeking a handgun or long gun eligibility certificate must apply directly to
DESPP, which is required to take the applicant’s fingerprints. Id. §§ 29-36f(a), 29-
36g(a), 29-37p(a), 29-37q(a). No temporary authorization from the local police
chief is required. In short, the applicant’s local police department conducts
fingerprinting for pistol permits, and DESPP conducts fingerprinting for
handgun and long gun eligibility certificates.
II
Connecticut law normally prohibits DESPP and municipal police
departments from “refus[ing] to collect the fingerprints of a person” seeking a
criminal-history check. Id. § 29-17c(a). However, on March 10, 2020, Governor
5
Ned Lamont declared a public health and civil preparedness emergency because
of the pandemic, and, on March 17, he invoked his emergency powers to issue
Executive Order 7E (“EO 7E”).
As relevant here, § 2 of EO 7E permitted DESPP and municipal police
departments to limit, or eliminate altogether, fingerprint collection for purposes
of criminal-history checks. (In functional terms, § 2 suspended the statute that
prohibits these entities from refusing to collect fingerprints.) The stated purpose
of § 2 was to prevent the transmission of COVID-19--which might occur during
the fingerprinting process--and to enable police personnel to concentrate efforts
on responding to the public-health crisis. Section 3 permitted the DESPP
Commissioner to extend the expiration dates of pistol and certain other permits.
On the day that EO 7E issued, the Commissioner (1) suspended
fingerprinting services at DESPP and (2) extended by 90 days (subject to further
extension) the expiration dates for pistol and certain other types of permits that
would have otherwise expired on or after March 1, 2020. Municipal police
departments in Vernon, Farmington, Ansonia and Bristol also suspended
fingerprinting services.
6
Five out of the six individual plaintiffs--Joseph Coll, Amy Jones, Todd
Skilton, John Lowman and Tanysha Brown--sought to have their fingerprints
taken at and to submit temporary pistol permit applications to their respective
local police departments in these municipalities. 2 Because those police
departments had suspended fingerprinting services in accordance with EO 7E,
the plaintiffs were turned away and therefore could not apply for the temporary
pistol permits they wanted. The sixth individual plaintiff, Daniel Gervais, had
his fingerprints taken and a temporary pistol permit issued by his local law
enforcement agency; but DESPP refused to process his application for a state
pistol permit, even though no additional fingerprinting was required at that
stage.
CCDL is a non-profit whose mission “is to preserve the effectiveness of the
Second Amendment through legislative and grassroots advocacy, education,
research, publishing, legal action and programs focused on the Constitutional
right to keep and bear firearms.” App. at 168 ¶ 9. CCDL’s president, Holly
2 Plaintiffs Coll and Brown already had their fingerprints on file with the state of
Connecticut because their jobs--a schoolteacher and bank security guard,
respectively--required background checks. While they were not required to have
their fingerprints taken again in connection with their pistol permit applications,
they were nevertheless turned away when they attempted to apply for
temporary pistol permits.
7
Sullivan, fielded complaints from individuals across Connecticut who sought
pistol permits and could not obtain them because of EO 7E. On April 10, 2020,
Sullivan wrote a letter to the Governor seeking repeal of EO 7E § 2 and advising
that CCDL would otherwise file suit. EO 7E § 2 remained in effect.
On May 9, 2020, the plaintiffs filed suit against the Governor and
Commissioner, as well as the police chiefs for Vernon, Farmington, Ansonia and
Bristol; and on May 15, the plaintiffs filed an amended complaint alleging several
civil rights violations under 42 U.S.C. § 1983, including, as relevant here, the
deprivation of their Second Amendment rights to keep and bear arms. The
plaintiffs also moved for a temporary restraining order (“TRO”) or a preliminary
injunction (“PI”) requiring the resumption of fingerprinting services. 3
Before a decision on the PI motion issued, circumstances changed. First,
the police-chief defendants resumed fingerprinting at their respective
departments. Accordingly, the plaintiffs withdrew the PI motion as against the
police-chief defendants and continued to pursue relief against only the Governor
and Commissioner. Second, DESPP resumed processing permit applications.
Third, the Commissioner announced that DESPP would resume fingerprinting
3The district court declined to issue a TRO on procedural grounds and construed
the plaintiffs’ motion as seeking only a PI.
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services on June 15, 2020. Finally, the Governor indicated that he intended to
repeal EO 7E § 2 (thereby ending the suspension of the statutory fingerprint-
collection requirement), effective June 15.
Nevertheless, on June 8, 2020, the district court (Meyer, J.) granted the
motion and issued a PI ordering that: (1) by June 15, the Governor repeal EO 7E
§ 2; and (2) by the same date, the Commissioner resume fingerprint collection at
DESPP. As relevant on appeal, the district court first concluded that all plaintiffs
had standing to seek injunctive relief. The court then concluded that the PI
motion was not moot notwithstanding the Governor’s and Commissioner’s
stated intention, because (i) the court was not convinced that EO 7E § 2 would be
repealed and that fingerprinting would resume by June 15, and (ii) the voluntary
undertaking by the Governor and Commissioner to require the resumption of
fingerprinting services afforded inadequate assurance that they would not
suspend fingerprinting in the future. The district court then reached the merits
and determined that a PI was justified.
The Governor and Commissioner complied with the PI and now appeal
the order that granted it.
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III
The Governor and Commissioner first argue that the plaintiffs lacked
standing to pursue the PI. Properly considered, however, the argument is one of
mootness: that by the time the PI issued, any alleged harms the plaintiffs suffered
had already dissipated.
While standing doctrine focuses “on whether the party invoking
jurisdiction had the requisite stake in the outcome when the suit was filed,”
Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008); Fed. Defs. of N.Y., Inc. v.
Fed. Bureau of Prisons, 954 F.3d 118, 126 (2d Cir. 2020), “mootness doctrine
ensures that [a] litigant’s interest in the outcome continues to exist throughout
the life of the lawsuit,” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). “If,
as a result of changed circumstances, a case that presented an actual redressable
injury at the time it was filed ceases to involve such an injury, it ceases to fall
within a federal court’s Article III subject matter jurisdiction and must be
dismissed for mootness.” Janakievski v. Exec. Dir., Rochester Psychiatric Ctr.,
955 F.3d 314, 319 (2d Cir. 2020). A case becomes moot “when it is impossible for
a court to grant any effectual relief whatever to the prevailing party.” Id.(quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)).
10
We generally review de novo questions of standing and mootness. Shain
v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004); Amador v. Andrews, 655 F.3d 89, 95
(2d Cir. 2011).
A. Gervais
Before this lawsuit was filed, the local law enforcement agency had taken
Gervais’ fingerprints and had issued him a temporary pistol permit. Gervais
complained only that DESPP refused to process his application for a state pistol
permit. However, DESPP resumed processing applications before the PI hearing.
Accordingly, Gervais was no longer suffering any redressable injury when the PI
issued; there was no “effectual relief” that the district court could have granted
him. 4 Janakievski, 955 F.3d at 319 (quoting Knox, 567 U.S. at 307). His request
for a PI was therefore moot.
Moreover, the plaintiffs’ brief on appeal does not respond to the assertion
that Gervais lacked standing (which we have recast as an issue of mootness).
Gervais therefore waived any argument that his controversy remained live. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently
4 In fact, the PI provides no relief to Gervais, as it requires the resumption of
fingerprinting but is silent as to processing applications.
11
argued in the briefs are considered waived and normally will not be addressed
on appeal.”).
B. Remaining Individual Plaintiffs
By the time the PI issued, any alleged harms suffered by the remaining five
individual plaintiffs--Jones, Skilton, Lowman, Coll and Brown--had already
dissipated because their local police departments had resumed fingerprinting.
Nevertheless, the district court concluded that the PI motion was not moot. It
applied the principle that the “‘voluntary cessation of a challenged practice does
not deprive a federal court of its power to determine the legality of the practice,’”
and reasoned that, notwithstanding their stated intention to reinstate
fingerprinting requirements, the Governor and Commissioner might “seek to
discontinue fingerprinting again in the future.” Conn. Citizens Def. League, Inc.
v. Lamont, 465 F. Supp. 3d 56, 68–69 (D. Conn. 2020) (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)).
It is true that the “voluntary cessation” of a defendant’s conduct might not
moot a controversy if there is a finding that the defendant could do it again. But
the event that brought about mootness here was not the Governor and
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Commissioner’s “voluntary cessation”; as explained below, it was the voluntary
decision of the municipal police chiefs to resume fingerprinting, and the
plaintiffs’ withdrawal of the PI motion as against the police chiefs in response.
i. The Mooting Event
When the plaintiffs withdrew the PI motion as against the police chiefs, it
became impossible for the district court to grant them “any effectual relief
whatever.” Janakievski, 955 F.3d at 319 (quoting Knox, 567 U.S. at 307). A PI
ordering the Governor to repeal EO 7E § 2 provides nothing to plaintiffs such as
these whose local police resumed fingerprinting while § 2 was still in effect. A PI
ordering the Commissioner to resume fingerprinting at DESPP similarly provides
nothing to plaintiffs who claim only that they sought fingerprinting at their local
police departments--not at DESPP.
Citing nothing in the record, the plaintiffs now argue that, had DESPP
been taking fingerprints, they “might” have sought eligibility certificates from
DESPP instead of seeking pistol permits from their local police departments.
Appellees’ Br. at 26. But the individual plaintiffs’ declarations explicitly state
that they sought pistol permits, and they say nothing about getting eligibility
13
certificates. The unsupported, speculative assertion in plaintiffs’ brief on appeal
is insufficient to foreclose mootness. See Fed. R. App. P. 28(a)(8)(A), (b)
(“[Appellee’s argument] must contain . . . citations to the . . . parts of the record
on which the [appellee] relies.”); Lore v. City of Syracuse, 670 F.3d 127, 171–72
(2d Cir. 2012) (declining to address a conclusory argument that did not comply
with Fed. R. App. P. 28(a)); cf. City News & Novelty, Inc. v. City of Waukesha,
531 U.S. 278, 285 (2001) (concluding that “a live controversy is not maintained by
speculation” that a party might in the future be prevented from conducting an
activity that it “currently asserts no plan to [conduct]”); In re Kurtzman, 194 F.3d
54, 58 (2d Cir. 1999) (per curiam) (concluding that the “mere possibility” of
“potential future injury” was “too speculative to avoid mootness” because it was
“neither actual nor threatened at [the] time”).
Therefore, the PI motion became moot when the police chiefs agreed to
resume fingerprinting and the plaintiffs withdrew the PI motion as against them.
Accordingly, the district court lost the power to grant these plaintiffs relief.
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ii. Voluntary Cessation
Before the PI issued, the Governor represented that he would repeal EO 7E
§ 2 on June 15, 2020; and the Commissioner represented that DESPP would
resume fingerprinting on that same date. The district court applied the
“voluntary cessation” rule and concluded that, notwithstanding these
representations, the controversy remained live because the court was not
convinced that EO 7E § 2 would be repealed and fingerprinting would resume by
that date, and because there was inadequate assurance that fingerprinting would
not be suspended again in the future. Conn. Citizens Def. League, 465 F. Supp.
3d at 68–69.
The voluntary cessation rule is inapplicable here (even beside the point)
because the plaintiffs mooted the PI motion when they withdrew it as against the
police chiefs. The voluntary cessation rule applies when “a defendant voluntarily
discontinues [the] challenged conduct.” Am. Freedom Def. Initiative v. Metro.
Transp. Auth., 815 F.3d 105, 109 (2d Cir. 2016) (per curiam) (emphasis added).
In some such circumstances, “‘dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is dismissed’”; in which
15
event “an injunction provides ‘effectual relief’ because it precludes the defendant
from reviving the challenged conduct.” Id. (quoting Knox, 567 U.S. at 307).
However, courts have no “license . . . to retain jurisdiction over cases in
which one or both of the parties plainly lack a continuing interest, as when the
parties have settled.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 192 (2000) (emphasis added). The voluntary cessation rule ensures
that a party cannot “evade judicial review, or . . . defeat a judgment, by
temporarily altering questionable behavior.” City News, 531 U.S. at 284 n.1. It
therefore “does not aid” a plaintiff whose own “conduct saps the controversy of
vitality, and [who] can gain nothing from . . . dismissal.” Id.Even if the voluntary cessation rule were applicable, it would not preclude
mootness. “The voluntary cessation of allegedly illegal activities will usually
render a case moot if the defendant can demonstrate that (1) there is no
reasonable expectation that the alleged violation will recur and (2) interim relief
or events have completely and irrevocably eradicated the effects of the alleged
violation.” Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 603 (2d Cir.
2016) (quoting Granite State Outdoor Advert., Inc. v. Town of Orange, 303 F.3d
450, 451 (2d Cir. 2002) (per curiam)). Although we generally review issues of
16
mootness de novo, we review for abuse of discretion whether it is reasonable to
expect defendants’ conduct to recur. See Irish Lesbian & Gay Org. v. Giuliani
(“ILGO”), 143 F.3d 638, 647 n.3 (2d Cir. 1998). 5
True, the PI would prevent the Governor from granting permission in the
future to suspend fingerprinting. Here, for any harm to arise, the Governor
would have to again empower municipal police departments to suspend
fingerprinting, and those departments would have to invoke that power and
implement a total suspension. Particularly in view of the mitigation measures
that have become available to combat the spread of COVID-19, and the
providential infrequency of pandemics, a future total suspension of
fingerprinting is speculative, even if permission to suspend were granted (which
itself is a contingency). Accordingly, the decision that the voluntary cessation
rule precluded mootness “cannot be located within the range of permissible
decisions” and was therefore an abuse of discretion. Klipsch Grp., Inc. v. ePRO
E-Com. Ltd., 880 F.3d 620, 627 (2d Cir. 2018) (quoting E.E.O.C. v. KarenKim, Inc.,
698 F.3d 92, 99–100 (2d Cir. 2012)).
5We exercised de novo review to conclude that the decision to apply another
exception to the mootness doctrine, whether conduct is “capable of repetition yet
evading review,” was itself an error. ILGO, 143 F.3d at 647–48.
17
C. CCDL
CCDL lacked standing to pursue the PI. Because CCDL brought this case
under 42 U.S.C. § 1983, it lacked “standing to assert the rights of its members.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). 6 An organization may
nonetheless bring “a § 1983 suit on its own behalf so long as it can independently
satisfy the requirements of Article III standing.” Id. (emphasis added). The test
is the same as that for individuals: in relevant part, CCDL must show “actual or
threatened injury in fact.” ILGO, 143 F.3d at 649 (quoting Spann v. Colonial Vill.,
Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)).
“[A]n organization’s abstract concern with a subject that could be affected
by an adjudication” is insufficient. Ragin v. Harry Macklowe Real Est. Co., 6
F.3d 898, 905 (2d Cir. 1993) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S.
26, 40 (1976)). Rather, “an organization establishes an injury-in-fact if it can show
that it was ‘perceptibly impaired’ by defendant’s actions.” Centro de la
6 To the extent that the district court viewed CCDL as asserting the rights of its
members, it erred. See Conn. Citizens Def. League, 465 F. Supp. 3d at 70
(considering “numerous localities” where CCDL members--who were not parties
in this action--were prevented from applying for pistol permits). Any injuries
suffered by non-parties were of course not properly before the district court. See
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not ‘decide
questions that cannot affect the rights of litigants in the case before them.’”
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990))).
18
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 110
(2d Cir. 2017) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
(1982)). Accordingly, “where an organization diverts its resources away from its
current activities, it has suffered an injury [that is] independently sufficient to
confer organizational standing.” Id. at 111.
The district court ruled that CCDL enjoyed standing because it diverted
resources in response to EO 7E and DESPP’s fingerprinting suspension. CCDL’s
president, Holly Sullivan, asserted that she (1) communicated with individuals
across Connecticut whose access to pistol permits was limited by EO 7E, and (2)
sent a letter to the Governor--in an effort to avoid litigation--asking him to
reinstate Connecticut’s fingerprinting requirement.
However, CCDL fails to identify any “current activities” from which it
diverted resources in order to pursue those efforts, and it therefore fails to show
“that it was ‘perceptibly impaired.’” Locust Valley, 868 F.3d at 110–11 (quoting
Havens Realty Corp., 455 U.S. at 379). The steps that were taken by Sullivan
were precisely CCDL’s “current activities.” Id. at 111. Sullivan averred that it
was “part of [her] duties as president of CCDL” to communicate with affected
individuals, and that one of her responsibilities is to “talk to people and
19
investigate reports from around the state to understand what issues are affecting
people who are applying for [firearm licenses].” App. at 167 ¶¶ 5–6. Lobbying
the Governor--and pursuing litigation--are integral to CCDL’s “mission . . . to
preserve the effectiveness of the Second Amendment through legislative and
grassroots advocacy . . . [and] legal action . . . focused on the Constitutional right
to keep and bear firearms.” Id. at 168 ¶ 9. Sullivan’s actions were not a
departure from CCDL’s usual activities.
Furthermore, CCDL lacked standing to pursue injunctive relief. “A
plaintiff seeking injunctive . . . relief cannot rely on past injury . . . but must show
a likelihood that [it] will be injured in the future.” Deshawn E. by Charlotte E. v.
Safir, 156 F.3d 340, 344 (2d Cir. 1998). The sole indication that CCDL might
suffer future injury is Sullivan’s statement that “CCDL has [expended and
diverted] and continues[] to expend and divert its resources and has been and
continues to be adversely and directly harmed by the Defendants’ actions.” App.
at 168 ¶ 15. Such a conclusory assertion cannot support standing, see Baur v.
Veneman, 352 F.3d 625, 636–37 (2d Cir. 2003), and falls short of establishing a
“likelihood” of future injury, Deshawn E., 156 F.3d at 344.
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IV
Because the PI motion was moot with respect to the individual plaintiffs,
and because CCDL lacked standing, the district court had no jurisdiction to issue
the PI. Therefore, we vacate it. The Governor and Commissioner also argue that
the decision to issue the PI was an abuse of discretion. Since we vacate the PI on
grounds of mootness and standing, we decline to reach that argument.
CONCLUSION
For the foregoing reasons, the PI is vacated.
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