By Tanya Metaksa
What’s New— New Mexico: At least five lawsuits have been filed against Governor Michelle Lujan Grisham’s anti-constitutional executive order banning the carrying of firearms in the US District Court for the District of New Mexico; NAGR v. Grisham, BONK v. Grisham, We The Patriots v. Grisham, Blas v. Grisham and Fort v. Grisham; Massachusetts: White v. Cox: A lawsuit filed on Aug. 31 to end Boston’s delaying tactic on firearms licenses; Texas: Fifth Circuit: Mock v. Garland: On Sept. 8 the plaintiffs filed their supplemental reply brief in support of their motion for preliminary injunction
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, 2023. And on August 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 Sept. 1 the defendants, BATFE, filed a supplemental brief in opposition to the plaintiffs’ motion. On Sept. 8, the plaintiffs filed a supplemental reply brief.
Background: This case was brought by Firearms Policy Coalition on Jan. 31, 2023 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.’”
Federal Lawsuits challenging State Laws & Executive Orders
Massachusetts: First Circuit: White v. Cox: The Second Amendment Foundation, Firearms Policy Coalition and Commonwealth Second Amendment have filed a lawsuit challenging gun license delays of six months or more in Boston, MA.“Previously, in 2020 and 2021, the Licensing Unit made individuals seeking licenses wait for months on a ‘wait list’ before they could submit applications—a practice it abandoned in response to a prior lawsuit by some of the Plaintiffs here,” reads the complaint. “Now, the Licensing Unit is accepting individuals’ license applications without significant delay but is making them wait for many months to submit samples of their fingerprints. Thus, while it has purportedly abandoned its use of a ‘wait list’ to submit applications, the Licensing Unit is still using the equivalent of a “wait list” to prevent people from completing the application process.”
New Mexico: Ninth Circuit: On Sept. 7, New Mexico Gov. Michelle Lujan Grisham (D) declared a health emergency and on Sept. 8 she declared that it would now be illegal to carry a gun open or concealed including those with valid permit in any area where violent crime is above a certain percentage of the population, banning firearms in Albuquerque and Bernalillo Counties. Gun owners and all pro-gun groups and associations have reacted swiftly to the Governor’s action.
At least five lawsuits have been filed in the US District Court for the District of New Mexico. On Sept. 9, three lawsuits were filed:
1. NAGR v. Grisham: The Plaintiffs pray that the Court enter a declaratory judgement pursuant to 28 U.S.C. § 2201 that the Carry Prohibition is unconstitutional on its face or as applied to the extent it prohibits law-abiding adults from engaging in Plaintiff’s Proposed Conduct described in paragraph 5; Enter preliminary and permanent injunctive relief enjoining Defendants … from enforcing the Carry Prohibition.
2. DONK v. Grisham was filed by Gun Owners Foundation: Plaintiffs request an immediate Temporary Restraining Order be issued on an emergency basis, followed by a preliminary and then permanent injunction.
3. We The Patriots USA, Inc. v. Grisham: The Plaintiffs seek emergency and permanent injunctive relief from the Court enjoining the Defendants from enforcing Allen’s Sept. 8, public health order. On September 10 one lawsuit was filed:
4. Blas v. Grisham (filed on Sept. 10): They have asked the court to—Declare Executive Order 2023-130 and the September 8, 2023 PHO unconstitutional as it applies to the right to bear arms in non-sensitive public places and permanently enjoin Defendants from enforcing that aspect of those orders. On September 11 a fifth lawsuit was filed:
5. Fort v. Grisham: The New Mexico Shooting Sports Association, Second Amendment Foundation and the Firearms Policy Coalition are also litigants. This lawsuit asks that the Court, “Declare that the Orders and all related laws, regulations, policies, and procedures, violate the right to keep and bear arms, as guaranteed under the Second and Fourteenth Amendments to the United States Constitution; b. Temporarily restrain each Defendant, each Defendant’s respective employees, officers, agents, and representatives, and all those acting in concert or participation with him or her, from enforcing the Orders…c. Preliminarily and permanently enjoin each Defendant, each Defendant’s respective employees, officers, agents, and representatives, and all those acting in concert or participation with him or her, from enforcing Orders and all related regulations, policies, and/or customs designed to enforce or implement the same.”
Additionally as of Saturday evening (9/9/23) Bernalillo County District Attorney Sam Bregman, Albuquerque Mayor Tim Keller and Albuquerque Police Chief Harold Medina have all announced they wouldn’t enforce the Governor’s order. “‘As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional,’ said Bregman, the top prosecutor in the Albuquerque area.”
The exact number of lawsuits fluctuates with totals ranging from 5 to 7 appearing in different media reports. With several noting that more lawsuits will be filed including The Reload who reported, “Republicans in both houses of the New Mexico legislature also announced they plan to file their own federal case to stop the ban.”
Judge David H. Urias has been assigned to NAGR v. Grisham, Donk v. Grisham and Fort v. Grisham. Originally on Sept. 11 a hearing on Donk was scheduled for Sept. 12. It was then cancelled, causing much speculation but it has been rescheduled for Sept. 13. The hearing now includes all three cases. Judge Laura N. Fishing has been assigned to the two remaining cases.
The most recent development in this saga has been on September 12 when Grisham began losing support among New Mexican Democrats. First, New Mexico Attorney General Raul Torres sent Governor Grisham a letter informing her that his office would not defend her in federal court. In his letter he wrote, “I do not believe that the Emergency Order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster.”Following Torres’ letter another letter from six New Mexico Democrat House members was sent requesting Grisham to rescind her ban on the legal carry of firearms, and finally State Senator Joe Cervantes, an anti-gun Senator, stated, “I call on the Governor to rescind her order outlawing arms. An unconstitutional approach undermines the important collaboration gun issues deserve.”
Although New Mexico is a very blue state and the legislature has been passing anti-gun laws, the question remains as to why Gov. Grisham finds herself alone after passing this executive order. Tom Knighton in Bearing Arms has suggested why law enforcement will not enforce her “emergency” orders. He points out that in 2021 New Mexico passed the New Mexico Civil Rights Act into law, a law abolishing qualified immunity for government officials. That law allows regular New Mexicans to sue for violations of their constitutional rights, and banning qualified immunity as a defense. No New Mexican police officer or legislator wants to be on their own facing such a lawsuit.
