By Tanya Metaksa
What’s New—Florida: Eleventh Circuit: Kiloton Tactical v. ATF: As a result of BATFE’s announcements prior to proposing the rule Kiloton was filed on Aug. 29. Bringing the action to preserve the current status quo against the Department of Justice’s “zero tolerance” policy; Texas: Fifth Circuit: NAGR v. Garland: On Aug. 9, this lawsuit was filed in the US District Court for the Northern District of Texas against the BATFE seeking relief from the Forced Reset Triggers regulation. On Aug. 30 District Judge Reed O’Connor granted a Temporary Injunction and enjoined BATFE from enforcing the regulation against the Plaintiffs; Texas: Fifth Circuit: Mock v. Garland: On Aug. 18 the plaintiffs filed their supplemental brief in support of their motion for preliminary injunction and on Sept. 1 the defendants, BATFE, filed a supplemental brief in opposition to the plaintiffs’ motion; Virginia: Fourth Circuit: Fraser v. ATF: On Aug. 30, Judge Robert E. Payne issued a several memorandum opinions: 1. He granted the Plaintiffs’ Motion for Class Certification (Doc.77); 2. He described the members of the class in another opinion. (Doc. 78). 3.Plaintiff’s Motion for Declaratory Judgement and Injunction is Granted. (Doc 80). And 4.) A stay of the Final Order of Inunction and the Final Order of Declaratory Relief and the Defendants’ motion for a stay of injunction pending appeal is granted. (Doc. 83.); Campos v. Bonta: Court of Appeal of the State of California:On Aug. 8, 2020 The complaint against the Attorney General and the Bureau of Firearms for the “intentional” delay of firearms transactions past the ten day legislative period. Two years later Aug. 3, 2022 Judge John S. Meyer ruled in favor of the Plaintiffs, granted a Writ of Mandamus, but granted stays on all his orders. The Attorney General has appealed and oral arguments are scheduled for Oct. 11;
Lawsuits challenging Federal Agencies:
BATFE proposed new “Definition of ‘Engaged in the Business’ as a Dealer in Firearms”
NPRM 2022R-17
Florida: Eleventh Circuit: Kiloton Tactical v. ATF: As a result of BATFE’s announcements prior to proposing the rule Kiloton was filed on Aug. 29. Bringing the action to preserve the current status quo against the Department of Justice’s “zero tolerance” policy. Kiloton Tactical was sent a Notice to Deny Application for a Renewal License as a federally licensed firearms dealer on July 10.
Background: Using the BiPartisan Safer Communities Act of 2022 as a mandate, BATFE on Aug. 31 issued a press release and a proposed rule, docket number ATF 2022R-17. According to the press release the proposed rule would require anyone who sells firearms online, at gun shows or anywhere, even from a private collection, to obtain an FFL. Public comments may be made by mail or submitted to Federal eRulemaking Portal: www.regulations.gov
Stabilizing Braces
Cases challenging 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. To date six Courts, including the US Court of Appeals for the Fifth Circuit have issued limited injunctions against this BATFE rule that became effective on June 1. And on Aug. 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit
Texas: Fifth Circuit: Mock v. Garland: On Aug. 18 the plaintiffs filed their supplemental brief in support of their motion for preliminary injunction and on September 1 the defendants, BATFE, filed a supplemental brief in opposition to the plaintiffs’ motion.
Background:This case was brought by Firearms Policy Coalition on Jan 31, asking for a Vacatur of the ATF action and/or a preliminary injunction. On March 30 District Judge Reed O’Connor denied both requests of the plaintiffs. On that same date the plaintiffs requested a preliminary injunction of the rule pending appeal and filed an appeal to the US Court of Appeals for the Fifth Circuit. Oral arguments were held June 29.
On Aug. 1, US Court of Appeals for the Sixth Circuit ruled that the plaintiffs are likely to win on the merits of their APA claim against the ATF’s pistol brace rule and has remanded the case to the district court with instructions to reconsider the motion for preliminary injunction. The entire order is online. The most salient part comes on page 38, Section V where the Court states that the district court “has not conducted extensive fact-finding or built a record for this court, we remand for a ruling on a preliminary injunction.” The Fifth Circuit even goes on to say that “in these circumstances, we reasoned that ‘limiting the relief to only those before [the court] would prove unwieldy and would only cause more confusion.’”
BATFE regulation regarding Forced Reset Triggers
Texas: Fifth Circuit: NAGR v. Garland: On Aug. 9, this lawsuit was filed in the US District Court for the Northern District of Texas. It was filed to seek declaratory and injunctive relief to end BATFE’s efforts to misclassify Forced Reset Triggers as Machine guns under the National Firearms Act of 1934. On August 30 Judge Reed O’Connor granted Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 17) to preserve the status quo until Sept. 27, or until such time that the Court rules on Plaintiffs’ Motion for Preliminary Injunction (ECF No. 22). The Defendants are enjoined from implementing the “ATF’s expanded definition of “machine-gun” against Plaintiffs Carey, Speegle and Wheeler.
BATFE regulation regarding 18-20 year old gun owners
Texas: Fifth Circuit: McRory v. Garland: On Aug. 14 Judge Reed O’Connor Ordered: “Motion for Temporary Restraining Order, Preliminary Injunction, and/or Permanent Injunction (ECF No. 2) is hereby Denied.”On Aug. 17 a notice of appeal was filed by the plaintiffs and then on Aug. 22 a Notice of Appeal was filed with the US Court of Appeals for the Fifth Circuit and the following day US District Court for the Northern District of Texas stayed the proceedings pending the Fifth Circuit’s resolution.
Background: A lawsuit initiated by Gun Owners of America challenging the law that “took effect on November 14 and mandate(d) an automatic, nationwide, indefinite waiting period on every prospective firearm purchaser who is at least 18 years of age but under 21 years of age, delaying the exercise of and thereby infringing the right to keep and bear arms for this entire category of ‘the people,” was filed on May 12 in the US District Court for the Northern District of Texas. Ever since the filing the Defendants (US Department of Justice) have filed several motions seeking to extend the time for filing responses. On July 17 Plaintiffs filed a Notice of Supplemental Authority regarding the Eleventh Circuit’s vacature of NRA v. Bondi and an en banc review.
Virginia: Fourth Circuit: Fraser v. ATF: On Aug. 30, Judge Robert E. Payne issued a several memorandum opinions: 1. He granted the Plaintiffs’ Motion for Class Certification (Doc.77); 2. He described the members of the class in another opinion. (Doc. 78). 3. Plaintiff’s Motion for Declaratory Judgement and Injunction is Granted. (Doc 80). And 4.) A stay of the Final Order of Inunction and the Final Order of Declaratory Relief and the Defendants’ motion for a stay of injunction pending appeal is granted. (Doc. 83.)
Background: This case also concerns BATF’s regulation against those 18-21 years of age from purchasing firearms began in 2022. On May 10, Judge Robert E. Payne struck down the federal law banning FFLs from selling handguns to adults between 18 and 20 years of age and then On May 19, since the parties could not agree on how to proceed, a new schedule was ordered — which has since been completed.
Federal Lawsuits challenging State Laws
California: Ninth Circuit
Campos v. Bonta: On Aug. 8, 2020 The complaint against the Attorney General and the Bureau of Firearms for the “intentional” delay of firearms transactions past the ten day legislative period. Two years later Aug. 3, Judge John S. Meyer ruled in favor of the Plaintiffs, granted a Writ of Mandamus, but granted stays on all his orders. The Attorney General has appealed, and oral arguments are scheduled for Oct. 11, in the Court of Appeal of the State of California.
Colorado: Tenth Circuit
Rocky Mountain Gun Owners v. Polis: On Aug. 21, Governor Jared Polis filed an emergency motion to stay the District Court’s preliminary injunction pending appeal. On Aug. 29 US Court of Appeals for the Tenth Circuit ordered “Upon consideration, the Governor has failed to show his entitlement to a stay under these
factors. Accordingly, we deny his emergency motion for a stay pending appeal.”
Background: On Aug./ 7, the day before SB169 was to become effective, Judge Philip A. Brimmer granted the plaintiffs, Tate Mosgrove and Adrian S. Pineda, both of whom are “older than 18, but younger than 21, a preliminary injunction against the enforcement of SB169. Additionally, the state of Colorado is enjoined, effectively immediately from enforcing SB169. The preliminary injunction remains in effect pending disposition of the case on its merits.”
Maryland: Fourth Circuit
Maryland Shall Issue v. Montgomery County: On Aug. 29, Judge Theodore D. Chuang ordered that “Plaintiffs are Granted leave to file the proposed Motion to Stay Order Pending Appeal,” which was filed on Aug. 30.
New Jersey: Third Circuit
Koons v. Reynolds and Siegle v. Platkin: On August 21Firearms Policy Coalition filed their response brief with the Third Circuit Court of Appeals challenging multiple aspects of New Jersey’s response to Bruen. On July 20 the state of New Jersey, both the legislature and the governor’s office, filed their opening briefs in the Second Circuit Court of Appeals. Oral arguments scheduled for October 25, 2023 in Philadelphia.
Background: On May 16 Judge Bumb issued an opinion and an order. She wrote: “Accordingly, on balance, the Court finds that the final PI factors weigh in favor of granting Plaintiffs’ motions for preliminary relief…In conclusion, the Second Amendment’s ‘right to bear arms in public for self-defense is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting McDonald, 561 U.S. at 780).
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).
State Courts—California
Superior Court of California:Campos v. Bonta: The Attorney General then appealed to the Court of Appeal of the State of California. Briefs have been filed and now oral arguments are scheduled for Oct. 11.
Background: On Aug. 8, 2020, the complaint against the Attorney General and the Bureau of Firearms for the “intentional” delay of firearms transactions past the ten day legislative period. On Aug. 3, Judge John S. Meyer ruled in favor of the Plaintiffs and granted a Writ of Mandamus.
