By Tanya Metaksa
What’s New—SCOTUS: Arguments scheduled in February and March 2024—Garland v. Cargill: Oral arguments scheduled for today; while National Rifle Association v. Vullo: oral arguments set for Monday, March 18; CRPA, et al. v. LA County Sheriffs Department Case No. 2:23-cv-10169: On Jan. 26, the plaintiffs (CRPA et al) filed a [Proposed] Order Granting Plaintiffs’, Motion for Preliminary Injunction (MPI). On Feb. 22 several of the defendants filed opposition briefs to the MPI; May v. Bonta & Carralero v. Bonta: Appellees Counsel was finally able to get their response brief on docket; Barris v. Stroud Township: The Pennsylvania Supreme Court ruled 4-1 on Feb. 22 that a town’s zoning restrictions on gun ranges don’t violate the Second Amendment; New York: Supreme Court of the State of New York: People of NY v. NRA, Wayne LaPierre, Wilson Phillips, John Frazier, and Joshua Powell: The first phase of this trial has ended with monetary damages assessed against LaPierre and Phillips. The next phase will probably not begin before July 2024; West Virginia: Brown v. ATF: Case # 23-2275: On Dec. 11, 2023, ATF appealed to the US Court of Appeals for the Fourth Circuit. On Feb. 26, the Court ordered the case to be held while three other cases are decided, which means young adults in West Virginia cannot exercise their Second Amendment rights.
SCOTUS
Argument scheduled in February
Garland v. Cargil: Case No. 22-976. Cert. Granted 11/3/2023. This casehas an argument date of today, Feb. 28, and Cargill filed his response brief on the bump stock ban on Jan. 22. Question presented: “Whether a bump stock device is a “machinegun” as defined in 26 U.S.C. 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot * * * by a single function of the trigger.” Vox.com just published a misleading article on this case.
Argument scheduled for March
National Rifle Association v. Vullo: Oral arguments set for Monday, March 18. The Counsel of Record is Eugene Volokh, well-known to most people in the firearms and Second Amendment Community. Assisting Mr. Volokh will be a litigator from the ACLU since this case is not a Second Amendment case, but a case dealing with First Amendment issues. Seven amicus briefs representing 40 individuals and organizations, including the ACLU, were filed in support. The question to be resolved is:
(Case: 22-842 SCOTUS has granted certiorari on the following question) “Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?”
March Conference Dates
The SCOTUS 2024 calendar has March conference dates listed as March 1, 15, 22 and 28. In the case of Garland v. VanDerStok: Case No. 23-10718, a response in the petition of certiorari is scheduled by March 8, 2023. This lawsuit against the BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers” is in many ways similar to Garland v. Cargil being argued today. It will be interesting to see how SCOTUS deals with another case brought by the Department of Justice regarding ATF-published rulings.
Circuit Courts of Appeal
California: Ninth Circuit
CRPA, et al. v. LA County Sheriff’s Department Case No. 2:23-cv10169: Plaintiffs (CRPA et al) filed a [Proposed] Order Granting Plaintiffs’, Motion for Preliminary Injunction (MPI). On February 22 several of the defendants filed opposition briefs to the MPI. The briefs can be read here.
Background: On Dec. 4, 2023, CRPA, The Second Amendment Foundation, Gun Owners of America, Gun Owners of California, and seven individuals sued the Los Angeles County Sheriff’s Department (LASD) seeking Declaratory and Injunctive Relief. They are challenging the constitutionality of the LA County policies and law primarily 1.) the lack of timely process for adjudicating carry permits, 2.) grossly excessive fees, 3.) the use of highly subjective suitability criteria, and 4.) refusal to honor permits issued by other states.
In the lawsuit the plaintiffs specifically point out the fact that LASD “admits that it takes ‘a year to a year and a half’ to process CCW applications. They also note that the LaVerne Police Department (LVPD) has a “cost prohibitive” fee structure, costing the applicant $900 to $1,000 depending on the varying costs of training and other required service. They even point out that the cost for psychological exams, if required, was capped at $150, but since the passage of SB2, the applicant needs to pay the full cost.
Finally, they address the problem that the residents of the other 49 states, who choose to visit California, must be unarmed and defenseless.
“Accordingly, California’s policy of denying out-of-state residents the ability to lawfully exercise their constitutionally protected right to be armed in public for self-defense inhibits the free interstate passage of citizens and violates equal protection doctrines by treating Americans differently merely on account of their state of residency.”
May v. Bonta & Carralero v. Bonta: Case 23-4354 and 23-4356: Oral argument has been scheduled for April 11, 2024. Due to technical difficulties, Appellees Counsel in May/Carralero was finally able to get their response brief on the docket. On February 16, the Firearms Policy Coalition (FPC) filed a response brief in which they argued, “California fails to show that any of its proffered analogs are sufficiently widespread within the relevant period—the Founding era—or relevantly similar in ‘how’ and ‘why’ they burden the right to self-defense.”
Hawaii: Ninth District
Teter v. Lopez: Case: 20-15948: On January 26, 2024, the US Court of Appeals for the Ninth Circuit vacated Teter and will be hearing it en banc.
Background: 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 August 7, 2023. On appeal from the US District Court for the District of Hawaii this case challenges the HI ban of butterfly knives. Oral arguments were held on Feb. 14, 2023. On Aug. 7, 2023, US Court of Appeals for the Ninth Circuit issued the following opinion:
“In Hawaii, it is a misdemeanor knowingly to manufacture, sell, transfer, transport, or possess a butterfly knife no exceptions. Haw. Rev. Stat. § 134-53(a). Because the possession of butterfly knives is conduct protected by the plain text of the Second Amendment, and because Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms, we conclude that section 134-53(a) violates Plaintiffs’ Second Amendment rights. We reverse and remand.”
West Virginia: Fourth Circuit
Brown v. ATF: Case # 23-2275: On Dec. 11, 2023, ATF appealed to the US Court of Appeals for the Fourth Circuit. On Feb. 26, this Court ordered the case to be held while three other cases are decided, which means young adults in West Virginia cannot exercise their Second Amendment rights.
Background: On Aug. 30, 2022, plaintiff Steven Robert Brown filed this complaint against BATFE for denying him the right to purchase a firearm. On Sept. 27, 2022, he filed an Amended Complaint For Declaratory Judgment And Injunctive Relief against All Defendants. On Dec. 1, 2023,Judge Thomas S Kleeh of the US District Court for the Northern District of West Virginia ruled: “Defendants are Enjoined from enforcing 18 U.S.C. §§ 922(b)(1) and (c)(1) against Plaintiffs and otherwise-qualified 18-to-20-year-olds.”
STATE COURTS
New York: Supreme Court of the State of New York
People of NY v. NRA, Wayne LaPierre, Wilson Phillips, John Frazier, and Joshua Powell: Wayne LaPierre, who resigned as Executive Vice-President of the National Rifle Association on Jan. 5, after working for the NRA since 1978, was found guilty by a jury of six of misappropriating funds and directed to pay the organization a total of $5.4 million, Former Treasurer Woody Phillips was responsible for repaying an additional $2 million. Secretary John Frazier was found guilty of lying on federal documents without financial misappropriation. However, the second phase of this trial probably will not begin until July 2024 or later.
Pennsylvania: The Supreme Court of Pennsylvania
Barris v. Stroud Township: According to the Firearms Policy Coalition:“The Pennsylvania Supreme Court ruled 4-1 today (2/22/24) that a town’s zoning restrictions on gun ranges don’t violate the Second Amendment. The opinion ends with a paragraph about how the justices don’t like the Bruen decision.”
Background: Jonathan Barris, a property owner in Stroud Township was target practicing on his land, when the Township decided to add to their zoning ordinance and regulation that specified where and on what size parcels it the county allowed shooting ranges. In 2015, Barris filed in the Monroe County Court of Common Pleas a complaint seeking declaratory and injunctive relief based on, inter alia, a claimed violation of the Second Amendment.He lost in the Common Pleas Court, but the Commonwealth Court en banc’s panel partially reversed that decision. Thus the Township appealed to the Supreme Court of Pennsylvania.
