By Tanya Metaksa
What’s New—Justice is not served quickly In DC—Smith v. DC: This case began in 2015 and the settlement has been dragging on since 10/2021; Allen v. DC: DC has requested an extension of time that has reset the deadlines in this case; Hanson v. DC: Plaintiffs own pistol and want to equip them with large-capacity magazines (LCM) that are banned under DC law. Judge Rudolph Contreras denies plaintiffs’ motion for a preliminary injunction; Brady Center v. US Dept of State: Since 2018 Brady has been negotiating with Dept. of State over documents relating to their 2017 settlement with Defense Distributed; Britto v. BATFE: a challenge to BATFE stabilizing braces rule, Judge Kacsmaryk denied CMMG’s request to intervene; Renna v. Bonta: CA AG Bonta filed an appeal to the US Court of Appeals for the Ninth Circuit; Oregon Firearms Federation v. Tina Kotek: Four of the five lawsuits against Measure 114 have been consolidated by Judge Karen Immergut underthis case. An expedited trial is scheduled for June 5, 2023; USA v. Paola Connelly: Defendant, Paola Connelly, sought a motion for reconsideration that was granted by Judge Katherine Cardone and Connelly’s charges were DISMISSED; Gazzola v. Hochul: SCOTUS issued a denial: The petition for a writ of certiorari before judgment is denied; United States v. Zackey Rahimi: is back in the news as SCOTUS is nearing a decision concerning the federal governments motion for Certiorari; Worth v. Harrington: On April 24 Judge Katherine Menendez GRANTED the Commissioner’s Motion for a Stay; Hardin v. ATF: a decision has been delivered—The Court agreed that it is up to Congress, not the ATF, to change the law if bump stocks are to be made illegal…we REVERSE the judgment of the district court and REMAND for further proceedings consisted with this opinion; On April 25 Gov. Jay Inslee signed HB1240 it became law instantly and it has been reported that there are 3 lawsuits waiting to be filed.
Monmouth Poll
The Hill, In an article published yesterday acknowledged that “Less than half of Americans in a new Monmouth University Poll said they’ll support an assault weapons ban in the country, down from a similar poll taken last year.”Last year 55 percent of people surveyed following the Uvalde shooting supported banning so-called “assault weapons.” After many shootings this year the number has dropped to 46%. That is a drop of 18%, almost 1 in 5. The Second Amendment Foundation tweeted, “Even if the public did support Assault Weapons Bans, we’d still continue to sure governments adopting these unconstitutional laws. We currently have 7 challenges to AWBs around the country.”
Lawsuits challenging Federal Agencies:
Bumpstock ban
Cargill v. Garland Case: 20-51016. The lawsuit challenges the DOJ’s classification of “bump stocks” as machine guns. The case was initiated in 2019 and the District Court ruled in favor of the DOJ. Then Cargill appealed to the US Court of Appeals for the Fifth Circuit, which decided on March 6, 2023, in favor of the plaintiff:the Final Rule’s interpretations of terms within the statutory definition of “machinegun,” which includes bump stocks and bump stock-type devices, are unreasonable and conflict with the statute. On April 4 DOJ filed a motion that it intends to petition the Supreme Court for a writ of certiorari. A copy of the writ was sent April 6. On April 14, the plaintiffs requested that the Circuit Court continue the stay until May 16, 2023.
This Fifth Circuit case may tip the balance in favor of SCOTUS granting certiorari. There have been two prior bump stock cases in which SCOTUS has denied certiorari: Aposhian v. Garland (Tenth Circuit) and GOA v. Garland (Sixth Circuit). Both of those cases were denied on October 3, 2022.
GOA v. Garland: The plaintiffs in this case have sought an additional 30 days to evaluate the impact of the Defendant’s petition for a writ in Cargill v. Garland.
Hardin v. ATF:In the appeal to the US Court of Appeals for the Sixth Circuit that was argued on Jan. 19, a decision has been delivered. The Court agreed that it is up to Congress, not the ATF, to change the law if bump stocks are to be made illegal…we REVERSE the judgment of the district court and REMAND for further proceedings consisted with this opinion.
Stabilizing Braces
Britto v. BATFE: This action challenges the ATF rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on January 31, 2023. 88 Fed. Reg. 6478 (Jan. 31, 2023). Recently CMMG, a corporation that manufactures AR parts and firearms, requested to intervene in this case and Judge Matthew J. Kacsmaryk denied the motion.
Lawsuits challenging Federal Law:
United States v. Zackey Rahimi: This is a case of a man who was involved in five shootings in and around Arlington, Texas between Dec. 2020 and Jan. 2021. He was also under an agreed civil protective order that expressly prohibited him from possessing a firearm and then he was indicted for a violation of U.S.C§ 922(g)(8). The Fifth District Court held that when Rahimi was charged with violating U.S.C§ 922(g)(8) he was not a felon, so he was not prohibited from owning firearms. Attorney General Merrick Garland on March 18 announced the DOJ would be filing certiorari (an appeal) with SCOTUS and asking the Supreme Court that the federal law remain in place while they review the Fifth Circuit’s findings. Since that date several notable people and groups have filed amicus curiae: Gov. Gavin Newson, Texas Advocacy Project, New York County Lawyers Association, State of Illinois, Joshua Horwitz, Tarrant County Criminal District Attorney and a coalition of Gun Violence and Domestic Violence Prevention Groups. The Gun Violence information is on the Giffords website and the amicus brief is also available there.
Lawsuits challenging State Laws
New York: Second Circuit: Five cases listed below were the subject of “expedited appeals” 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: the cases are: Christian v. Nigrelli, Hardaway v. Nigrelli, Spencer v. Nigrelli, Antonyuk, et al v. Hochul, and Gazzola v. Hochul.
Gazzola v. Hochul: SCOTUS issued a denial: The petition for a writ of certiorari before judgment is denied.
California: Ninth Circuit:
Boland v. Bonta: After Judge Cormack J. Carney issued a Preliminary Injunction Order determining that the California Unsafe Handgun Act’s provisions…are unconstitutional in the Boland v. Bonta case, it took almost a week for Attorney General Raoul to announce that California will appeal to the Ninth Circuit. Boland v. Bonta: California has appealed to the Ninth Circuit and on March 31 the Ninth Circuit issued a stay in part.
Renna v. Bonta: Following the PI in Boland v. Bonta, Judge Dana M. Sabraw issued a PI (preliminary injunction) against the California Unsafe Handgun Act’s provisions. Both cases have occurred within a 2-week timeframe. On April 14 CA AG Bonta filed an appeal to the US Court of Appeals for the Ninth Circuit.
CASES BEING TRIED TOGETHER in Judge Benitez’ courtroom and an opinion is expected to be published in April 2023.
Miller v. Bonta: On March 20, 2023 Judge Benitez ruled that (assault weapons ban) § 1021.11 of the California Code of Civil Procedure is unconstitutional. We can assume that this will be appealed to the Ninth Circuit Court of Appeals.
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.
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.
Other CA cases:
Rupp v. Bonta: This case challenges California’s assault weapon ban and was originally filed in 2017. On April 3, a Joint Stipulation and Proposed Order to Modify Pretrial Deadlines Motion was filed and on April 7 the Court made changes when it filed its order. The court ordered that 1. The deadline to file dispositive motions remains May 26; 2. The hearing on the Plaintiffs’ Daubert motion is this Friday, April 28; 3. The deadline to file motions in limine has been continued to Aug. 4, and the Final Pretrial Conference is continued to September 1, 2023. A Daubert Motion was filed by the plaintiffs to exclude the testimony of Ryan Busse, a former gun industry employee who has been used by the anti-gun groups such as Giffords and Everytown. The motion to exclude Busse, filed by the legal team at Michel & Associates is interesting to gun owners.
District of Columbia: DC Circuit
Hanson v. DC: Plaintiffs own pistols and want to equip them with large-capacity magazines (LCM) that are banned under DC law. Judge Rudolph Contreras denies plaintiffs’ motion for a preliminary injunction.
Smith v. DC: This case was brought in 2015 by a group of plaintiffs who are four non-residents and two residents of the District of Columbia who, over the course of time between May 15, 2012, and October 10, 2014, were arrested by the Metropolitan Police Department on gun-related charges. On 9/12/2021 Judge Royce C. Lamberth granted the plaintiffs motion on plaintiffs’ Second Amendment claims that DC gun laws were unconstitutional. He wrote, the district violated the plaintiffs’ Second Amendment rights…based on an unconstitutional set of D.C. laws. He also granted the non-residents motion for summary judgement on the fact that DC gun laws also violated their Fifth Amendment rights to travel and equal protection. On 10/8/2021 a motion to stay and a motion on mediation was issued by Judge Lamberth. Since that time thirteen extensions have been granted and on 4/14/23, the district requested another 30-day stay.
Allen v. DC: DC has requested an extension of time that has reset the deadlines in this case. In a case where the DC government revoked a carry permit, Judge Tanya Chutkan denied the DC motion to dismiss the Second Amendment claim that challenged the permit revocation.
Brady Center v. US Dept of State: The Brady Center first submitted a FOIA request on July 16, 2018 concerning the settlement between Defense Distributed and the State Department. Five months later Brady sued because “the agency has failed to process the FOIA request in a timely and expeditious manner.” Since that time the two parties have been cooperating in getting the FOIA processed. On April 14, they requested to file a joint status report on June 14.
Illinois: Seventh Circuit
Cases currently in the federal court system challenging the newly passed Illinois Public Act 102-1116 (HB5471), the new IL gun control law.: Accuracy Firearms, LLC et al v. Pritzker; Langley v. Kelly; and Barnett v. Raoul: Also see Caulkins v. Pritzker under State Court cases.
Barnett v. Raoul: The Plaintiffs have filed a reply in support of their motion for a preliminary injunction. A thread on twitter by @BishopOnAir of the consolidated case against the Illinois’ gun ban is a very interesting read for gun owners.
Bevis v. Naperville & State of Illinois: A lawsuit against the city of Naperville’s assault weapons and magazine bans. Judge Kendall of the United States District Court for the Northern District of Illinois eastern division denied the plaintiffs motion of the preliminary injunction. The case was appealed to the US Court of Appeals for the Seventh Circuit and the plaintiffs filed a motion for an injunction pending appeal. On April 18, the Court of Appeals denied the motion.
Minnesota: Eight Circuit
Worth v. Harrington: Minnesota’s 2003 Citizens’ Personal Protection Act required applicants to be “at least 21 years of age.” In this case three plaintiffs under the age of 21 brought suit against their respective sheriffs for enforcing the Minnesota statute. Judge Katherine Menendez on March 31 stated that Minnesota Law requiring “a person must be at least 21 years of age to receive a permit to publicly carry a handgun in Minnesota violates the rights of individuals 18-20 years old to keep and bear arms protected by the Second and Fourteenth Amendments.” As of April 1, Judge Menendez put a hold on entering final judgement until the MN AG’s emergency order is ruled upon. The Plaintiffs filed their response to a stay on April 5. On April 24 Judge Menendez GRANTED the Commissioner’s Motion for a Stay.
Firearms Industry Lawsuits
New York: Second Circuit
Jimmy S.C. Jinn v. Sig Sauer: The plaintiff, Jinn, brought suit alleging that he suffered injury when his Sig Sauer P320 fired in his holster without him pulling the trigger. Plaintiff alleged defective design and/or manufacture. However the plaintiff has also moved to exclude the testimony of both his expert witnesses, leading to the Magistrate Judge recommending summary judgment for Sig Sauer writing “there is insufficient evidence to support critical elements” of the plaintiff’s claims.
Bains v. American Tactical, Inc: Lawsuit is being promoted by Brady United against the seller of 60 round magazines that were used by the assailant in 2021 in Indianapolis, Indiana. The lawsuit alleges “A company that imports, manufactures, distributes, or sells highly lethal products to civilians owes a duty to the public to be particularly careful about whose hands those products end up in.”
Oregon: Ninth Circuit
Oregon Firearms Federation v. Tina Kotek: Four of the five lawsuits against Measure 114 have been consolidated by Judge Karen Immergut under this case. An expedited trial is scheduled for June 5, 2023. On 4/14/23 the plaintiffs made a motion for a PI and Judge Immergut Denied that motion. On 4/19/23 the judge ordered a protective order regarding information in this case would maintain the anonymity of the party releasing the information.
Texas: Fifth Circuit
USA v. Paola Connelly: Defendant, Paola Connelly, sought a motion for reconsideration that was granted by Judge Katherine Cardone and Connelly’s charges were DISMISSED. Cardone wrote: “922(g)(3) and (d)(3) are unconstitutional, saying the former is like “a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends.” This case has some similarities to the United States v. Zackey Rahimi as they both deal with federal law sections 922(g)(3) and (d)(3).
Washington: Ninth Circuit:
Hartford v. Ferguson: The Second Amendment Foundation and Firearms Policy Coalition filed a lawsuit challenging Washington’s new law banning the future sale, manufacture and import of so-called “assault weapons” simultaneously to Gov. Jay Inslee’s signing of the bill, which took effect immediately.
Lawsuits before State Courts
Illinois: Caulkins v. Pritzker: Originally No. 2023-CH-3 that was before the Circuit Court of the Sixth Judicial Circuit, Macon County, IL. This case was directly appealed to the Supreme Court of Illinois after the Circuit Court ruled in favor of the plaintiffs ruling that the law, that passed the legislature on its last day of the 2022 session, was unconstitutional. That bill became Public Act 102-1116 §25. In a motion to the Supreme Court of Illinois the plaintiffs questioned the impartiality of two new justices, who were elected to their positions in 2022, asking the Court to recuse said justices. Both these justices received $1 million each in campaign donations from Governor Pritzker.
Both Justices filed motions denying the motion to recuse. Justice Elizabeth Rochford wrote, “That contributors to my campaign committee might appear as counsel or parties before this court does not require my recusal from this case. Our supreme court rules specifically allow a judicial candidate’s campaign committee to solicit and accept reasonable campaign contributions and public support from lawyers.” Justice Mary O’Brien’s motion stated, “Because plaintiffs have failed to sufficiently plead any facts that would require disqualification under Rule 2.11 of the Code of Judicial Conduct, I am required under Rule 2.7 to hear and decide the instant appeal.”Finally, the Court issued a terse motion, “IT IS ORDERED that, because disqualification in this Court is a decision that rests exclusively within the determination of the individual judge, appellees’ request that the Court disqualify Justices Rochford and O’Brien is denied.”
Jerry Stocks, the attorney for the plaintiffs, commented on the failure of the recusal motion by issuing the following statement:
“We raised a fair question arising from appearances that reasonably informed the grounds for recusal and stand by the content of our Motion. Ultimately, each justice must make an independent evaluation whether a party to the appeal seeks that evaluation or not. In this respect, the suggestion that as movants raising the issue that we had a burden of proof to show actual impartiality on the part of the justice is a contention with which we disagree. The decision has been made and we turn to the merits of the challenge to the facially unconstitutional law. It is premature to determine the remedy, if any, for the participation of the Justices if our view is valid.”
