Couple asks Ninth Circuit to overturn automatic gun ban for restraining orders


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PASADENA, Calif. (CN) — The Ninth Circuit heard oral arguments Friday in a gun rights case in California, in which an Orange County couple is trying to get their right to possess firearms back despite having a restraining order taken out against them.

According to California law, a person subject to a restraining order “shall not own, possess, purchase, receive, or attempt to purchase or receive a firearm or ammunition while the protective order is in effect.” When Richard and Miranda Wallingford filed their lawsuit in August 2021, they were not suing to overturn the law — they were suing to get their guns back. But according to attorney Alexander Frank, who argued the case before the Ninth Circuit, they weren’t not suing to overturn the law.

“When we filed the suit, we didn’t think it was likely that we would get the state to overturn the law. That seemed optimistic, based on the constitutional standards of the state,” said Frank in a phone interview after oral arguments. But, he said, following the U.S. Supreme Court’s decision in June to strike down a New York law which restricted the right to carry a gun in public (New York State Rifle & Pistol Association v. Bruen), “things have changed, to put it mildly.”

The Wallingfords have lived in the same Huntington Beach house for more than 50 years. In 2013, they got a new neighbor: Jessica Nguyen. The first of many disputes between the couple and Nguyen was over the Wallingford’s 30-year-old melaleuca tree. Nguyen wanted it removed. Things went downhill from there.

Nguyen sued the Wallingfords twice, then filed for a restraining order in which Nguyen claimed Richard Wallingford “pulled [her] hair, pushed [her] down to the ground” and said to her, “Stupid immigrant, go back to your country.” The restraining order was temporarily granted, but ultimately a judge denied the petition.

The neighbors continued to fight. The Wallingfords, who by then had installed a security camera pointing at Nguyen’s house, say Nguyen would shout things at them, including “Old [expletive] white trash, next time you’ll be dead. I’ll be lucky this time, white trash. I [sic] going [sic] be lucky. You’ll be dead, [expletive] white trash,” according to the Wallingford’s opening brief.

Each requested a restraining order against the other. In November 2019, a judge granted both. Shortly thereafter, in accordance with state law, Richard Wallingford turned over his guns to a licensed firearms dealer for storage.

Nearly two years later, in August 2021, the Wallingfords filed a federal lawsuit claiming “California’s complete restriction on firearm or ammunition possession and acquisition by any person subject to a civil restraining order, regardless of the basis for the order, is unconstitutional as applied to plaintiffs.”

A federal judge dismissed the case, finding the court had no jurisdiction in what was a “state court’s legal conclusion.” In other words, because it was a California law that automatically instituted the gun ban, the Wallingfords were “effectively” challenging a state court’s decision, which meant a federal court had no basis to intervene. The court dismissed the suit with prejudice, denying the Wallingfords a chance to refile their complaint using a different legal argument.

In his oral arguments, Frank, the Wallingfords’ attorney, took aim at the firearm law itself.

“It’s a bizarre statute,” he said. “And that’s why we’re here. Because the state seemingly doesn’t protect federal rights.”

The three-judge panel, made up of two Donald Trump appointees and a Barack Obama appointee, repeatedly asked Frank why the Wallingfords hadn’t sued in state court. Frank said his clients were asking for a “general constitutional challenge,” which he said the Ninth Circuit did have jurisdiction over.

Frank also argued the Wallingfords should have been allowed to amend their complaint with new facts or different legal arguments, especially given the decision in Bruen which was published well after the two parties’ briefs had been filed. The decision, Frank said, “effectively resets the standard of review in a more plaintiff-friendly direction.”

U.S. Circuit Judge Mark Bennett, one of the Trump appointees, put this question to Deputy Attorney General Rita Boswell, who was arguing the appeal for the state.

“We just had a seminal Second Ammendment case that [Frank] says changes the playing field,” said Bennett, “and that they ought to be given the opportunity to amend their complaint.”

Bosworth disagreed.

“I don’t think that Bruen affects the outcome at all,” she said. “Either way, this is an issue that should be litigated in state court.”

U.S. Circuit Judge Daniel Collins, the other Trump appointee, and U.S. District Judge Elizabeth Foote, an Obama appointee sitting by designation from the Western District of Louisiana, a Barack Obama appointee rounded out the panel. They did not indicate when or how they would rule.

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