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4th Circuit vacates earlier order, rendering 2A lawsuit moot

Just weeks after ruling that a law preventing people under the age of 21 from purchasing firearms was unconstitutional, the 4th Circuit Court of Appeals has overturned its own decision due to a technicality.

The decision was the latest development in a lawsuit filed in October 2018 on behalf of then-20-year old Tanner Hirschfeld and then-18-year-old Natalia Marshall. The lawsuit asked the Western District Court of Virginia to declare the gun act unconstitutional and to stop enforcement of handgun and ammunition age restrictions. Both plaintiffs were students at the University of Virginia at the time the lawsuit was filed.

According to the lawsuit, both Hirschfeld and Marshall were turned away by local firearms dealers when they applied to purchase handguns. Marshall had attempted to purchase a pistol for protection, she said in the pleading, because she worked in a remote area and had been in an abusive relationship in which she filed for a protection order.

In July, the law in question was deemed unconstitutional on a 2-1 vote by a panel from the 4th Circuit Court of Appeals. That decision that was rendered moot by the same court on Wednesday due to Marshall’s recent 21st birthday.

“After the opinion issued but before the mandate, Marshall turned 21. And that made her claims moot,” wrote Judge Julius Richardson. “Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case. So it must be dismissed as moot.”

Richardson wrote that, despite efforts to “try to breathe new life into her claims after they became moot,” Marshall’s new claim that she wishes to sell handguns to friends under 21 would be considered a private sale not typically affected by the challenged laws and regulations.

Despite attempts to bring those sales within this court’s purview by alleging that she wishes to use a federally licensed firearm dealer to facilitate the sales, Richardson wrote that this newly alleged injury was raised for the first time on appeal, and only after the case became moot.

Similarly, he wrote that an attempt to add new parties — Corey Fraser, a 19-year old, and Battlefield Firearms, a federally licensed firearms dealer — on July 24, the day before Marshall turned 21, did not fall within the district court’s jurisdiction to grant.

Elliott Harding, who represented Marshall and Hirschfeld over the course of the years-long litigation, said that his clients were disappointed that the system “continues to deny their equal access to fundamental liberties simply because of their youth.”

“Ms. Marshall initiated her suit less than two months after turning eighteen, yet her case couldn’t make it to en banc review before she turned twenty-one when mootness became an issue,” he said. “It’s unfortunate that the government will evade the repercussions of the court’s thorough ruling simply because the nature of the laws at issue allow them to escape final review through our lengthy litigation process.”

Hirschfeld and Marshall are considering all of their options for additional review and will decide what course of action they want to pursue in the near future, Harding said.

In the meantime, Harding said Fraser and Battlefield Firearms have a pending appeal to review whether the district court erred when it denied their timely motion to intervene prior to Marshall’s 21st birthday after it held that it lacked jurisdiction to do so while the case was on appeal.

“We’re hopeful the 4th Circuit will reverse that decision by reaffirming its prior holdings that district court’s maintain jurisdiction to grant intervention when such action would aid an appeal, as it would in this case,” Harding said. “Regardless of how these immediate issues may be resolved, these laws will continue to be challenged one way or another until liberty is ultimately restored.”

Following the 4th Circuit decision on Wednesday, Virginia Attorney General Mark Herring claimed credit for successfully defending the “longstanding federal gun violence measure.” Herring, along with Maryland Attorney General Brian Frosh, filed a joint amicus brief in August that argued the three-judge panel got the decision wrong in July.

“From the outset, we believed that the panel had gotten this one wrong, and I’m glad that the Fourth Circuit has now vacated that decision upon finding the case is moot,” Herring said in a news release. “Handguns are too often the weapon of choice for dangerous individuals who may want to harm themselves, an intimate partner, or even commit a crime. With this decision, this constitutional, longstanding gun safety law that has kept Virginians and our communities safe for decades will remain on the books.”


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