By Tanya Metaksa
What’s New—On March 20 in the U.S. Second Circuit Court of Appeals, the following New York expedited appeals will be heard in tandem: Antonyuk, et al v. Hochul; Hardaway v. Nigrelli; Christian v. Nigrelli; Gazzola v. Hochul and Spencer v. Nigrelli. Maryland Shall Issue v. Moore: Original case name: Maryland Shall Issue v. Hogan. The current case which is before the Fourth Circuit deals with a Second Amendment challenge to the Handgun Qualification License (HQL). Oral arguments were held on March 10, 2023; Polymer80 v. Garland: The new rule defining Frame or Receiver will put Polymer80 out of business. Thus they are seeking an expedited timetable as well as a TRO and PI; Spencer v. Nigrelli: motion filed by plaintiffs in the US Court of Appeals for the Second Circuit; Scheduled dates for the following cases: Boland v. Bonta: The hearing was held on Jan 23. Plaintiffs’ Post-Hearing Supplemental Memorandum in support of Plaintiffs’ Motion for Preliminary Injunction was filed on Feb 24, the defendants brief was filed on March 10;Fraser v. BATFE: a hearing was held on Feb 9, 2023. Judge Payne asked for replacement briefs that “more accurately reflect and develop the position taken during oral argument”. The schedule: “On March 8, 2023, the parties shall simultaneously file opening briefs; on March 15,, the parties shall simultaneously file responses”; On March 8 defendants submitted their opening brief; United States v. Missouri: This is a case brought by the Department of Justice over HB85, a law passed by the MO legislature in 2021 that declares five categories of federal firearms laws “invalid” and deters and penalizes their enforcement by federal, state and local law enforcement officers. On March 13 the Circuit Court amended its March 9 order “to reflect that the motion to stay pending appeal shall be fully briefed for the Eighth Circuit’s consideration by March 20, 2023.”
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
The latest ruling in VanDerStok v. Garland is the second blow to President Biden’s efforts to unilaterally tighten gun regulations through ATF rule making rather than legislation. It comes just a few weeks after the Fifth Circuit Court of Appeal ruled the agency’s bump-stock ban violated the APA.
VanDerStok v. Garland: On March 2, Judge Reed O’Connor issued a preliminary injunction that granted Defense Distributed, a manufacture of gun parts, the right to keep manufacturing those parts, thus denying BATFE the right to enforce their new rule concerning what parts are considered a firearm receiver. This is the third circuit court ruling that deals with bans of so-called “ghost guns.” The previous ones have considered state laws rather than BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers”as firearms. Judge O’Connor’s latest opinion has evolved from September when he ruled that the “definition of a firearm in the Gun Control Act does not cover all firearms parts” and granted a preliminary injunction to plaintiff Tactical Machining, followed by a Nov. 2 opinion granting the Second Amendment Foundation and Defense Distributed’s motion to intervene and then on Nov. 3 granting BlackHawk Manufacturing Group’s motion for a preliminary injunction.
Morehouse Enterprises v. ATF: Judge Peter D. Welte not only denied the preliminary injunction sought against the “ATF from enforcing various parts of an omnibus rule scheduled to take effect Aug. 24”, but found the Plaintiffs’ motion for oral argument Moot. As a result, the plaintiffs are seeking an interlocutory appeal of that order with the Court of Appeals and have requested that the proceedings before the District Court be stayed until the appeal is adjudicated. The ATF rule regulated unfinished, nonfunctioning firearm components identically to finished and operational firearms.This case has been joined by 17 states attorneys general.
Polymer80 v. Garland: Polymer80 is the industry leader in the design, manufacture, and distribution of receiver blanks, jigs, and associated kits. The BATFE rule on framer or receiver will put this company out of business. The lawsuit was filed on Jan 9, requesting a TRO and PI and has been on an expedited schedule. Judge O’Connor has denied the defendants’ motion to expedite and on March 13 met and set out a scheduling order that a joint report shall be filed on or before April 10.
Pistol Brace Rule
Second Amendment Foundation, Inc., Rainier Arms. v. BATFE: On Feb. 17 The Second Amendment Foundation (SAF) and Rainier Arms filed an amended complaint against BATFE’s pistol brace rule. A press release by the SAF includes the following statement by SAF Executive vice President Alan M. Gottlieb:
“Biden has weaponized the ATF and Justice Department, and we cannot allow that to go unchallenged.” The government has set May 31 as the compliance date for this new arm brace rule, so we’re asking the court to act now, well in advance of that date, to prevent what amounts to a constitutional travesty.
The initial filing was January 15, 2021 in an effort to prevent BATFE from publishing a rule on pistol braces. Over the years the agency has had many differing explanations concerning the use of pistol braces with legally owned firearms. The Court stayed the litigation until a final rule was published. The final rule was published on Jan. 31, and the Court lifted the stay on Feb. 17. On the same date the plaintiffs filed an amended complaint that accused the government of violating the Administrative Procedures Act, the Second Amendment and the Due Process Clause of the 14th Amendment. The case in being litigated in the US District Court for the Northern District of Texas.
Mock v. Garland: On Feb. 21, the plaintiffs filed a brief in support of their motion for a Preliminary Injunction (PI) or postponement of the effective date of the final rule. On Jan. 31 Firearms Policy Coalition (FPC) filed a challenge against the ATF Pistol Brace Rulemaking on both Administrative Procedures and Second Amendment grounds.
Britto v. BATFE: On Feb. 17 CMMG, Inc. added its own Motion for preliminary injunction.
The Wisconsin Institute for Law & Liberty (WILL) filed this lawsuit in US District Court for the Northern District of Texas on Jan 31, challenging BATFE’s new rule on classifying pistols with stabilizing braces as “short barreled rifles”. According to WILL Deputy Counsel, Dan Lennington, “These military veterans defended our country overseas, and now they are defending our rights here at home. WILL is proud to represent these patriots. The Biden Administration has no power to re-classify pistols as rifles, and we will vigorously defend the Second Amendment in federal court.”
Oregon Measure 114 lawsuits
Oregon lawsuits against the implementation of Measure 114: Four of the five lawsuits against Measure 114 have been consolidated by Judge Karen Immergut under Oregon Firearms Federation v. Kate Brown. The lawsuits being consolidated are Fritz v. Rosenblum, Eyre v. Rosenblum, initiated by the National Shooting Sports Foundation, and Azzopardi v. Rosenblum. The final case, Arnold v. Brown, initiated by Gun Owners of America in a state court with Judge Robert S. Raschio presiding.
Lawsuits challenging State Laws:
New Jersey: Third Circuit:
NSSF v. Platkin:NSSF filed this lawsuit againstA1765. A1765, a bill that allowed lawsuits against members of the firearms’ industry in contravention of federal law, was signed by Gov. Phil Murphy after the Bruen decision. NSSF sought in November 2022 a Preliminary Injunction (PI) and on Jan. 31, 2023 Judge Zahid N. Quraishi granted the PI. On Feb. 2, the state of NJ filed a notice of Appeal to the US Court of Appeals for the Third Circuit. On Feb. 7, the state of NJ informed Judge Quraishi that it would be filing a motion requesting a Stay pending Appeal. After a supporting motion was made by the defendants (NJ) and plaintiffs (NSSF) on March 3 Judge Quraishi denied the states motion for a stay pending Appeal. As a result, the preliminary injunction of “Section 58-35” of NJ statutes remains in effect.
Koons v. Reynolds: Defendants have now filed a brief in opposition to the Plaintiffs Motion for a preliminary injunction.On Jan. 30, Judge Renee Marie Bumb issued a Temporary Restraining Order“shall REMAIN IN EFFECT pending a hearing and ruling on Plaintiffs’ Motion for a Preliminary Injunction.”The injunction stops the ban on carrying guns in public parks, beaches and in casinos. This PI adds to the judge’s previous injunction against bans where alcohol is served, public libraries, museums, entertainment facilities, and private property without owner’s explicit consent. On Jan 24, the presiding officers of the New Jersey Senate and the General Assembly filed a motion to allow them to intervene. Judge Bumb issued her first order in Koons v. Reynolds “the motion for a temporary restraining order will be GRANTED,”and wrote thatthe new law“essentially renders the entire state of New Jersey a ‘sensitive place’ where firearms are prohibited.” After the Judge Bumb’s ruling the ANJRPC requested to consolidate the Siegle v. Platkin caseand the Koons v. Reynolds cases. The Koons case is being supported by the Second Amendment Foundation, Firearms Policy Coalition and several other groups. The Siegel case is supported by the National Rifle Association (NRA) and the Association of New Jersey Rifle & Pistol Clubs, Inc.(ANJRPC).
New York: Second Circuit: the legislature went to great lengths to ensure that Bruen does not allow civilians the Right-to-Carry guns by passing the Concealed Carry Improvement Act (CCIA). Four cases listed below will be the subject of “expedited appeals” that “will be held in tandem on March 20, 2023”by the US Court of Appeals for the Second Circuit. Three of the cases are appeals from Judges Sinatra and Suddaby’s orders for restraining orders, stays and preliminary injunctions. The fourth case, Gazzola v. Hochul, is an appeal from Judge Sannes’ denial of a TRO or PI.
Antonyuk, et al v. Hochul:. The Antonyuk case against NY gun control will be heard March 20th by the Second Circuit. The state’s brief has been filed. This lawsuit challenges “various provisions of New York’s newly minted and ineptly named “Concealed Carry Improvement Act (CCIA)”. It was filed on Sept. 20 and Judge Glenn T. Suddaby on November 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay. The state of NY then appealed to the US Court of Appeals for the Second Circuit, requesting a stay and the stay was granted on Dec. 7. On Jan. 9, the plaintiffs filed their response to the Stay. In mid-January a group of 16 Democrat Attorney Generals filed an amicus curia for the State of NY.
Hardaway v. Nigrelli: AfterNY Judge John L. Sinatra, Jr. ruled on Oct. 10 that the section of NY’s new CCIA making it a felony to possess a firearm at “any place of worship or religious observation” was unconstitutional and he granted a preliminary injunction stopping the enforcement of this section of the CCIA.
Christian v. Nigrelli:, Although “A preliminary injunction, effective immediately from enforcing N.Y. Pen.L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022, the U.S. Court of Appeals for the Second Circuit issued a stay on Dec. 12, 2022. This case challenges the enactment of S51001. Briefing schedule ordered ordered for US Court of Appeals for the Second Circuit: Dec. 13, 2022—Defendants (Nigrelli) opening brief due Jan. 22, 2023; Plaintiffs (Christian) opposition brief March 6, 2023, any reply brief by March 22, 2023.
Gazzola v. Hochul: This case filed on Nov. 1, 2022 challenges most parts of New York State gun laws enacted between May 30, 3033 and July 1, 2022. The lawsuit includes 125 complaints against these laws. On December 7 Judge Brenda K. Sannes denied plaintiffs’ motion for a TRO or a Preliminary Injunction (PI) and subsequently plaintiffs appealed to the US Court of Appeals for the Second Circuit.
Other current New York cases in the Second Circuit: Two other cases that addresses guns in places of worship are Goldstein v. Hochul that was brought by a congregant and the Congregation of Bnei Matisyahu in Brooklyn, NY and Spencer v. Nigrelli, that is currently on appeal in the US Court of Appeals for the Second Circuit.
Corbett v. Hochul (7/1//2022), challenging the required disclosure of social media accounts. Motion for a preliminary injunction DENIED.
National Shooting Sports Foundation v. Letitia James: This case deals with the enactment of a NY law to hold the gun industry civilly liable for “public nuisances.” NSSF filed this case on December 16, 2021 and then in May 2022 Judge Mae D’Agostino ruled in favor of the defendant. NSSF has now appealed this ruling to the US Court of Appeals for the Second Circuit.
California: Ninth Circuit:
SECTION 1021.11 Fee Shifting provisions: In Miller v. Bonta, which is a lawsuit against CA’s ban on assault weapons, the state was enjoined from enforcing Section 1021.11 as the court found that it violated the First Amendment, the Supremacy Clause and the Due Process and Equal Protection Clauses. Since five counties and two cities (Counties of Imperial, Alameda, Ventura, Los Angeles and Santa Clara; Cities of San Diego and San Jose) were not defendants in Miller this case, Firearms Policy Coalition v. City of San Diego has been filed.
FOUR CASES BEING TRIED TOGETHER: The spreadsheets depicting relevant gun laws from all parties have been submitted with plaintiffs responding negatively to those supplied by the state. On Feb. 7 Judge Roger T. Benitez, issued the following minute order regarding the four cases (Miller, Duncan, Rhode, Fouts v. Bonta) , “The State defendants are directed to file a brief which identifies the best historical regulation that is a proper analogue and relevantly similar to a statewide background check for buying ammunition. The brief shall be limited to five pages and shall be filed with the brief currently due 30 days after the filing of the law list.” The 51 page document of historical case law is available.
Duncan v. Bonta: (large capacity magazines) The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A summary by @KostasMoros on Twitter can be found here.This lawsuit deals with CA law passed in 2016 that banned the mere possession of magazines with over ten rounds. On March 29, 2019 US District Court for the Southern District of California in Duncan v. Becerra ruled that “Magazines holding more than 10 rounds are ‘arms”’”and “California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.” The case was then appealed to the US Court of Appeals for the Ninth Circuit that on November 30, 2021 overturned the District Court decision using a two-step framework. The Plaintiffs then appealed to the US Supreme Court (SCOTUS) for certiorari. On August 1, 2022 after the Bruen decision had been rendered SCOTUS granted certiorari, vacated and remanded for further consideration.The case was then remanded to the District Court and Judge Benitez. Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A Twitter summary by @KostasMoros can be found here.
Rhode v. Bonta: (ammunition purchase restrictions) Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. This case began in 2016 as Rhode v. Becerra: The plaintiff is Kim Rhode, an American OLYMPIC medalist. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Roger Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez and then that court vacated and remanded the case back to the District Court for the Southern District of California to be revisited based on the Bruen case. All restrictions on purchasing ammunition in California that have been in effect for almost 5 years still remain.
Miller v. Bonta: (assault weapons ban) Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. The US Court of Appeals for the Ninth Circuit has REMANDED and VACATED this case back to the District Court and a hearing on the motion for a Preliminary injunction was held last Nov. 28.
Other California cases:
Boland v. Bonta: CRPA lawsuit against the CA Handgun Safety Roster Law filed in August 2022. On Jan. 23-24, a hearing was held by Judge Cormac J. Carney on plaintiffs’ motion for a PRELIMINARY INJUNCTION. Plaintiffs’ Post-Hearing Supplemental Memorandum in support of Plaintiffs’ Motion for Preliminary Injunction was filed on Feb 24, the defendants brief was filed on March 10.
Illinois: Seventh Circuit
The first five of these cases challenge the newly passed Illinois Public Act 102-1116 (HB5471), the new IL gun control law.
Anderson v. Raoul: A case challenging Illinois’ ban on suppressors filed Feb. 27. The plaintiffs are seeking to enjoin those who enforce this law.
Accuracy Firearms, LLC et al v. Pritzker: This case was filed in January in Effingham County Circuit Court by Thomas DeVore. Judge Joshua Morrison issued a temporary restraining order (TRO). However, this TRO only applied to the 860+/ plaintiffs not the entire County or the state of Illinois. The state appealed Judge Morrison’s ruling to the 5th District Appellate Court. A three judge panel upheld the TRO on the enforcement of the new law banning semiautomatic firearms and now it applies to the entire state, not just the initial plaintiffs in Effingham County. FFL of IL v. Pritzker: A group of Illinois Federally Licensed Firearms dealers and several other plaintiffs including Gun Owners of America are suing Gov. Pritzker. This case was filed in January in the US District Court for the Southern District of Illinois. Michel & Associations, the California firm, has also joined the lawsuit.
Langley v. Kelly: This case was filed in January in the Illinois Circuit Court system (state court) and on Jan. 23 it was moved to the US federal court system by the Office of the Attorney General. On Jan. 24 a motion for a Preliminary Injunction was filed in the US District Court for the Southern District of Illinois
Anderson v. Raoul: Lawsuit was filed on Feb 27, 2023 in the seeking declaratory and injunctive relief against Illinois’ law banning the possession of silencers.US District Court for the Southern District of Illinois.
Bevis v. Naperville: In February Judge Virginia M. Kendall DENIED the motion for a temporary restraining order and a preliminary injunction against the town of Naperville and the state of Illinois against their laws regarding “assault weapons” and their sale and possession.
Viramontes v. The County of Cook: In this lawsuit filed by the Second Amendment Foundation (SAF) in 2021, challenging an “assault weapons” ban in Cook County, IL a reply memorandum has been filed in support of a stay while Langley v. Kelly is litigated.
Maryland: Fourth Circuit
Maryland Shall Issue v. Moore: Original case name: Maryland Shall Issue v. Hogan. The current case which is before the Fourth Circuit deals with a Second Amendment challenge to the Handgun Qualification License (HQL). Oral arguments were held 8:30 am on March 10. This case was originally brought by Maryland Shall Issue in 2016 after the Maryland legislature passed a law requiring a HQL. The suit alleges that the HQL requirements, both as set forth in the statute, and as implemented by the Maryland State Police, violate the Second Amendment of the Constitution by placing unjustifiable and overwhelming burdens on the right of law-abiding citizens to purchase a handgun for the home.
Missouri: Eighth Circuit
United States v. Missouri: This is a case brought by the Department of Justice over HB85, a law passed in 2021 by the MO legislature that declares five categories of federal firearms laws “invalid” and deters and penalizes their enforcement by federal, state and local law enforcement officers. The US Department of Justice has sued the state of Missouri in the US District Court for the Western District of Missouri where the Missouri law was found unconstitutional. The state of Missouri has appealed to the US Court of Appeals for the Eighth Circuit and asked for a stay on the court order. On March 13 the Circuit Court amended its order to reflect that the motion to stay pending appeal shall be fully briefed for the Eighth Circuit’s consideration by March 20.
Rhode Island: First Circuit
Ocean State Tactical v. Rhode Island: the plaintiffs have appealed Judge John James McConnell Jr’s denial of their request for a Temporary Temporary Injunction against the 10-round magazine law.
Virginia: Fourth Circuit
Fraser v. ATF: This case concerning BATF’s regulation against those 18-21 years of age from purchasing firearms began in 2022 and on Jan. 25, Judge Robert E. Payne requested both plaintiffs and defendants to file “a table” detailing that would include “(1) the laws governing militias in each state in effect on June 8, 1789 and (2) any changes to state militia laws between January 1, 1784 and December 15, 1791.” After Judge Payne held a hearing on Feb 9, he asked for replacement briefs that “more accurately reflect and develop the position taken during oral argument”. Today, the parties shall simultaneously file responses; and C) The Court will notify the parties if further oral argument is necessary.”
Washington: Ninth Circuit
Sullivan v. Ferguson: There are no new developmentsin this lawsuit, filed by the Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC) against the Washington state standard capacity magazine ban (bigger than 10 rounds) since the appellants’ reply brief was filed.
State Courts
Illinois:
Caulkins v. Pritzker: In Macon County, IL a group of law-abiding gun owners led by Dan Caulkins sued Gov. J.B. Pritzker in the Sixth Judicial Circuit of Macon County, IL. After the passage of Gov. Pritzker’s omnibus gun bill, Public Act 102-1116, on January 17, 2023 a group of citizens in Macon County, IL requested a hearing on a restraining order against the new law. The state of Illinois is appealing to the Supreme Court of Illinois and have asked for a schedule that includes holding oral arguments during the second week of May 2023.
Bailey v. Pritzker: This case was filed in January. On Feb. 2, Judge T. Scott Web ordered a Temporary Restraining Order against Public Act 102-1116.
