By Tanya Metaksa
What’s New— California: Nguyen v. Becerra: Lawsuit challenging “One gun a month” law; New Mexico: Ambdor v. Grisham: Another lawsuit has been filed against Governor Michelle Lujan Grisham’s anti-constitutional executive order banning the carrying of firearms in the New Mexico Supreme Court; North Dakota: Morehouse v. ATF: Morehouse Industries, doing business as Bridge City Ordinance is suing ATF for instituting action to revoke their FFL. On Sept. 16 Ammoland.com published that ATF had rescinded their license revocation; Ninth Circuit: Junior Sports Magazine v. Bonta: First Amendment trumps California’s dislike of anything related to shooting firearms, even if it is legal; South Carolina: Horseman v. Charleston County Parks and Recreation: A county ordinance against guns in parks has been effectively become null and void; Texas: VanDerStok v. Garland: On Sept. 14 the US District Court for the Northern District of Texas issued a motion and order enjoining BATFE from implementing their Rule on “ghost guns” against on Defense Distributed and BlackHawk Manufacturing. The following day Tactical Machining filed a similar motion in that Court.
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, 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 “Zero Tolerance” Inspections for Federally Licensed Firearms Dealers (FFL)
North Dakota: Eight Circuit: Morehouse v. BATFE: On July 11, Gun Owners of America and Morehouse Industries (known as Bridge City Ordinance-BCO) filed suit against BATFE after the agency had begun the process of revoking the FFL of Bridge City Ordinance. According to the complaint:
BCO was the subject of an administrative compliance inspection conducted by ATF in February of 2023. That inspection was the first compliance inspection ever conducted by ATF with respect to either of the BCO licenses.
On May 23, ATF issued a Notice of its intent to revoke both of BCO’s licenses. That notice was based solely on minor technical and recordkeeping errors in BCO’s business activities which allegedly occurred under the BCO Retail License.
According to a Notice of Administrative Decision filed with the US District Court for the District of North Dakota an Administrative Decision was issued by ATF regarding their Notice of Intent—The Director of Industry Operations determined not to issue a final notice of revocation to BCO on Aug. 30. It was published on Ammoland Saturday. The Morehouse lawsuits will continue.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Nguyễn v. Becerra: This lawsuit was filed in December 2020 challenging the “one gun a month” provision of the California Penal Code. Second Amendment Foundation, Firearms Policy Coalition, North County Coalition and San Diego Gun Owners Pac were among the Plaintiffs. 5 months into the case Magistrate Judge William V. Gallo recused from the case and Magistrate Judge Mitchell D. Dembin was assigned. After a series of briefs from both the Defendants and the Plaintiffs it was not until June 30, 2022, 18 months after the original motion and as a result of the SCOTUS Bruen decision, Judge William Q. Hayes requested supplemental briefs regarding the “standard” to be applied to this case. On Jan. 5, the judge DENIED Plaintiffs motion for Summary Judgement. On Aug. 25 a third scheduling order was signed with dates in September and October for pretrial motions. On Sept. 15, motions from both the Plaintiffs and the Defendants were submitted. The Defendants (state of CA) argued that “firearms were not widely owned or purchased during the founding and reconstruction eras.” A trial date has yet to be set. Junior Sports Magazine v. Bonta: The plaintiffs appealed to the Ninth Circuit Court of Appeals after Judge Snyder of US District Court for the Central District of California denied a Preliminary Injunction (PI). The three judge panel included District Judges N. Randy Smith, Kenneth K. Lee and Lawrence VanDyke. The case was argued and submitted on June 28, and on Sept. 13, the Ninth Circuit reversed “the district court’s denial of preliminary injunction and remand(ed).” The Court wrote:
“And even assuming that intermediate scrutiny applies, California’s advertising restriction likely imposes an unconstitutional burden on protected speech. The state has made no showing that broadly prohibiting certain truthful firearm-related advertising is sufficiently tailored to significantly advance the state’s goals of preventing gun violence and unlawful firearm possession among minors.”
Background: This lawsuit was filed immediately after Gov. Gavin Newsom signed AB2571 that made it unlawful for any“firearm industry member” to “advertise, market, or arrange for placement of an advertising or marketing communication concerning any firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.” The Plaintiffs were seeking a Preliminary Injunction (PI). The lawsuit was suspended until after the legislature passed another bill, AB160, modifying some of the parameters of the original legislation, Judge Christina A. Snyder then ruled against the motion for a PI on October 24, 2022.
New Mexico: Tenth Circuit:
Donk v. Grisham and more: Following Judge Urias’ Temporary Restraining Order Governor Grisham held a press conference on September 15, which was reported by KRQE, in which she stated that she will narrow the scope of the original order to just banning both open and concealed carrying of firearms in “public parks and playgrounds.” In response to a query about holding a special session, she replied that she was not yet calling for a special session of the legislature.
Background: On Sept. 7, New Mexico Governor 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.
The following 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,2. DONK v. Grisham, 3. We The Patriots USA, Inc. v. Grisham, and 4. Blas v. Grisham On Sept. 11 a fifth lawsuit was filed: 5. Fort v. Grisham. On Sept. 14 the New Mexico Republican legislators and the NRA filed a lawsuit, Ambdor v. Grisham, in the New Mexico Supreme Court.
The first lawsuit to be considered was Donk v. Grisham before Judge David H. Urias who granted the plaintiffs’ motion for a Temporary Restraining Order. The TRO is in effect “until such time as the Court has ruled on the Plaintiffs motions for a preliminary injunction.” Additionally, a hearing on that motion is set for Oct. 3, at US District Court for the District of New Mexico.
New York: Second Circuit
NY State Firearms Association v. Nigrelli: This lawsuit filed on Sept. 13 in the US District Court for the Western District of New York for “injunctive relief” against the newly enacted background checks law for ammunition purchases. The new ammunition registration law requires that everyone who wishes to purchase ammunition in New York State submit to a background check every time they purchase ammunition and pay a fee of $2.50 each time ammunition is purchased. As the implementation of this law began on the third weekend of September, purchasing ammunition became a 6 hour wait in many areas. Governor Kathy Hochul will begin to feel the heat from New Yorkers as this new background check and tax levy.
Texas: Fifth Circuit
VanDerStok v. Garland: On Sept. 14, the US District Court for the Northern District of Texas issued a motion and order for Defense Distributed and BlackHawk Manufacturing. The order states that BATFE “are ENJOINED from implementing and enforcing against Intervenor Plaintiffs Defense Distributed and BlackHawk Manufacturing … the provisions in27 C.F.R. §§ 478.11 and 478.12 that the Court has preliminarily and on the merits determined are unlawful.”This order allows these two corporations the ability to remain in business through the legal process. The following day Plaintiff Tactical Machining, LLC filed a similar motion seeking injunctive relief.
Background: Firearms Policy Coalition (FPC) filed a lawsuit on Aug. 11, 2022 challenging BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers” as firearms in the United States District Court for the Northern District of Texas. On Nov. 2 Judge Reed O’Connor granted Second Amendment Foundation and Defense Distributed’s motion to intervene and then on Nov. 3 he granted BlackHawk Manufacturing Group’s motion for a preliminary injunction. Earlier in September Judge O’Connor stated 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, but not to its customers and requested further briefing.
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.
On June 30, Judge O’Connor issued a Memorandum Opinion and Order VACATING the final rule:
“This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968. Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule, Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (codified at 27 C.F.R. pts. 447, 478, and 479), is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.”
Two weeks later US DOJ appealed this to the US Court of Appeals for the Fifth Circuit. On July 24 US Court of Appeals for the Fifth Circuit issued an unpublished order that stated, “we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule.”
The US Department of Justice then applied on July 27 to the U.S. Supreme Court (SCOTUS) for a stay of the judgement from the US Court of Appeals for the Fifth Circuit. August 8 SCOTUS issued an order:
“The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari.”
The three judge panel of Willett, Engelhardt and Oldham of the US Court of Appeals for the Fifth Circuit held oral arguments on September 7, 2023.
Local Lawsuits —South Carolina, Charleston County
South Carolina, Charleston County: Horseman v. Charleston County Parks and Recreation—Graham Horseman took the Parks and Recreation Department of Charleston County to court over signage that guns were not allowed in County parks in October 2022. In August 2023 the plaintiff and the defendant came to an agreement—The Parks and Recreation Department would remove the signs and the plaintiff would drop his lawsuit.
