By Tanya Metaksa
What’s New—SCOTUS: Cargill v. BATFE: has been distributed for conference of 10/27/23; Gazzalo v. Hochul: SOTUS denies Emergency Application; California—Ninth Circuit: Duncan v. Bonta: The 9th Circuit en banc on Oct. 10 stayed Judge Benitez’ injunction against CA’s magazine ban while the state’s appeal continues. Hawaii—Ninth Circuit: Two cases before the Ninth Circuit in Hawaii are heating up—Teter v. Lopez and Wolford v. Lopez; New Jersey: Defense Distributed v. Platkin: Judge Michael A. Shipp rules that computer files are not covered under the First Amendment; Texas: National Association for Gun Rights v. Garland: On Oct. 7, Judge Reed O’Connor issued an order for a Preliminary Injunction and Enjoined the government against actions against the Plaintiffs, the Organizational Plaintiffs and their downstream customers of any commercial member of an Organization Plaintiff; Teter v. Lopez:- Michigan Attorney General Dana Nessel tweets her support for the en Banc panel; New Mexico: Donk v. Grisham:A status conference is set for Oct. 18 on Zoom before Magistrate Judge Laura Fashing; New Jersey: Defense Distributed v. Platkin: Federal District Court Judge Michael A. Shipp ruled in this case that computer files are not covered by the First Amendment. Cheeseman v Platkin: challenging New Jersey’s Bruen response law filed a motion for summary judgement.
Cases challenging ATF’s new definition of “Machinegun”
Forced Reset Triggers
National Association for Gun Rights v. Garland: On Oct. 7, Judge Reed O’Connor issued an order for a Preliminary Injunction and Enjoined the government against actions against the plaintiffs, the Organizational Plaintiffs and their downstream customers of any commercial member of an Organization Plaintiff.
Background: This case was filed in US District Court for the Northern District of Texas on Aug. 9. One of their plaintiffs is Patrick Carey, who had purchased two “FRT 15 – Rare Breed Trigger”(s) prior to Aug. 22. Mr. Carey received a “warning notice” dated Aug. 22, telling him that such items have “been classified as machine-guns that were unlawfully manufactured” and that “[p]ossession of these devices is a violation of law due to their illegal manufacture” and that “unlawful receipt and possession of these devices is a felony violation of Federal law.” Mr. Carey on that same date surrendered his Rare Breed Triggers to ATF. On Aug. 30, Judge Reed O’Connor issued a Temporary Restraining Order until either Sept. 27 or such time the Court rules on Plaintiffs’ Motion for a Preliminary Injunction.
Cases challenging the Federal Bump stock ban
Cargill v. BATFE Case: 20-51016.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. After six months of delay it was scheduled for conference of Sept. 26, but on Sept 20 it was rescheduled for 10/6/2023. However, the lawsuit has now been rescheduled for Nov. 14. The case before SCOTUS has been distributed for conference of 10/27/23.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Duncan v. Bonta: The 9th Circuit en banc on Oct. 10 stayed Judge Benitez’ injunction against CA’s magazine ban while the state’s appeal continues. They began by writing, “First, we conclude that the Attorney General is likely to succeed on the merits.” Then they agreed with AG Bonta that “California indisputably will face an influx of large-capacity magazines like those used in mass shootings.” Four judges dissented.
Background: The hearing on this case was held in May 2023 along with Rhode v. Bonta (ammunition purchase restriction) and Miller v. Bonta (assault weapons ban). The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A summary of the hearing compiled by @KostasMoros on Twitter can be found here. On Sept. 22, 2022 Judge Roger T. Benitez ordered an injunction against California’s ban on magazines that hold more than 10 rounds. The Attorney General of California, Rob Bonta, lost no time in appealing to the US Court of Appeals for the Ninth Circuit on the same day as Benitez’s opinion was issued. The Ninth Circuit, in a unusual decision, has taken the case back en banc (to the same panel that SCOTUS remanded it to after Bruen) rather than having a three-judge panel hear the Emergency Motion. This lawsuit, which began in 2017 is a response to a CA law passed in 2016 that banned the mere possession of magazines with over ten rounds.
May v. Bonta: After the passage of SB2, a Bruen-response bill creating “sensitive places” where firearms are not allowed, this lawsuit was initiated on Sept. 12. Plaintiffs include CRPA, GOA, SAF and others.
“In stark contrast to SB 2, Bruen recognized a general right to be armed in public places, subject only to limited, historically valid exceptions. In defiance of that holding, California has made the right a rare exception in most public places.”
On Sept. 28, Judge Cormac J. Carney issued an order with the following schedule: Plaintiffs’ memorandum to be filed by Sept. 29. Defendants opposition is due by Nov. 3, Plaintiffs reply by Nov. 30, with a court hearing scheduled for Dec. 4. The Plaintiffs’ brief has been filed.
Hawaii:Ninth Circuit
Teter v. Lopez:- Michigan Attorney General Dana Nessel tweets her support for the en banc panel. A multistate coalition of 17 attorneys general are supporting Hawaii’s request to the Ninth Circuit to rehear an appeal defending Hawaii’s ban on butterfly knives. The petition seeks a full en banc review of a panel opinion issued on Aug. 7.
in Teter v. Lopez.
Wolford v. Lopez: Hawaii filed its opening brief with the Ninth Circuit on Oct. 5. They allege that “concealed carry permit holders have been responsible for thousands of deaths nationwide.”
Background: On the June 23, three individual plaintiffs and the Hawaii Firearms Coalition challenged Hawaii’s new law, based on SB1230, designating most of the islands of Hawaii, including private property, as “sensitive places” where carry permits are not recognized. The District Court granted a Temporary Restraining Order (TRO) and a Preliminary Injunction (PI) on Aug. 8. On Aug. 15, the Attorney General of Hawaii has on “an emergency basis for an order staying the district court’s appealable temporary restraining order pending an appeal and for an immediate administrative stay pending the Court’s consideration of Appellant’s stay request.”
Maryland: Fourth Circuit
Maryland Shall Issue v. Montgomery County: Plaintiffs filed the proposed Motion to Stay Order Pending Appeal, but the motion was DENIED by the US Court of Appeals for the Fourth Circuit on Oct. 6.
New Jersey: Third Circuit
Defense Distributed v. Platkin: Federal District Court Judge Michael A. Shipp ruled in this case that computer files are not covered by the First Amendment. This case goes back at least a decade. I covered the case in 2020 in an article here. The Plaintiffs say they will appeal to the US Court of Appeals for the Third Circuit and hope that the Third Circuit sends it back to the Fifth Circuit. The case is the result of an injunction that was granted in the state of Washington stopping Defense Distributed from posting CAD and other files on their website.
Cheeseman v. Platkin: A challenge to New Jersey’s “assault weapons ban” in the US District Court for the District of New Jersey. On Oct. 6 Plaintiffs filed a motion for summary judgement. This is a consolidated action that includes the Cheeseman case, Ellman v. Platkin and ANJRPAC v. Platkin.
New Mexico: Tenth Circuit:
Donk v. Grisham: A status conference is set for Oct. 18, on Zoom before Magistrate Judge Laura Fashing.
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.
