By Tanya Metaksa
What’s New—Scotus has four conference days scheduled this month: Oakland Tactical v. Howell Township: Petition for Certiorari;Michigan: C.S. v. McCrumb: Case 24-1364: A case in Michigan of a student who wore a hat with text and a drawing of an AR-15 was stopped from wearing it by the school; Texas: Mock v. Garland: brief filed in US Court of Appeals for the Fifth Circuit Illinois: Harrel v. Raoul: Judge Stephen Patrick McGlynn rules PICA is an unconstitutional affront to the Second Amendment; New York: Heeter v. James: Case 24-cv-00623-JLS: Judge John Sinatra denies state’s motion to dismiss;
SCOTUS
Certiorari: The first four Fridays in November are listed as conference days, with order list issuance days on Nov. 18 and 25. Several cases requesting certiorari were scheduled:Wilson v. State of Hawaii: Case # 23-7517 was redistributed for a conference on October 18, 2024, and no action was taken.
Michigan: Sixth Circuit
Petition for Certiorari: Case #24-178: The petitioner’s reply brief of Nov. 5, presents a “clear split in the Circuits” concerning zoning ordinances regarding shooting ranges.
Oakland Tactical v. Howell Township: Case #23-1179: On May 31, Judges Cole, Kethledge, and White wrote the 2-1 majority opinion upholding the District Court’s decision. Kethledge was the dissenting judge. However, Judge Kethledge would relitigate the case on two issues: “first, whether training for purposes of confrontation or self-defense is limited to target shooting at certain distances (which, as discussed above, the plaintiffs have not adequately briefed); and second, whether the Township’s restrictions on the plaintiffs’ proposed conduct is consistent with the Nation’s historical traditions of firearm regulation (which the Township thus far has not briefed at all).”
Background: The lawsuit was filed in June 2019 by Oakland Tactical, which desires to construct and maintain a shooting range facility on agricultural land within the township. The allegation was:
“Howell Township has prohibited the siting, construction, and operation of shooting ranges in the town through its zoning regulations by failing to provide or allow any designated areas within the town wherein the siting, construction, or operation of a shooting range would be permissible.”
On Sept. 10, 2020, Judge Bernard A. Friedman ruled“the defendant violated none of the plaintiff’s Second Amendment rights by denying the requested zoning amendment at issue” and granted the defendant’s motion to dismiss. The Plaintiffs appealed to the US Court of Appeals for the Sixth Circuit Mach 2021. On August 5, 2022, the Sixth Circuit vacated and remanded under Bruen. Following the District Court’s granting of the Township’s motion to dismiss, the plaintiffs appealed again to the US Court of Appeals for the Sixth Circuit. An oral argument was held on Sept. 8, 2023, before the US Court of Appeals for the Sixth Circuit. During the oral argument, the plaintiff’s lawyer quoted the 2011 Ezell v. City of Chicago in the Seventh Circuit, a significant case dealing with firearms training. The Ezell case held that the core individual right of armed defense includes a corresponding right to acquire and maintain Proficiency in firearm use through target practice. The Ezell Court further stated that “the city of Chicago had failed to establish that target practice is wholly unprotected as a matter of history and legal tradition in the founding era or when the 14th Amendment was ratified.”
Circuit Court
Michigan: Sixth Circuit
C.S. v. McCrumb: Case 24-1364: The plaintiffs filed an appeal to the US Court of Appeals for the Sixth Circuit on April 4. On Nov. 6, the appellants filed a reply brief to the defendant’s brief filed on Oct. 10.
Background: The original case was filed on May 5, 2022. The case was filed against the principal of Robert Kerr Elementary School for violating a third-grader’s First and Fourteenth Amendment rights. The child wore a hat bearing the test “Come and Take It” with an image of an AR-15 firearm to the school’s “hat day.” The complaint may be found here. This case was initially filed on May 16, 2023, in the US District Court for the Eastern District of Michigan, where the court DENIED C.S.’s motion and ruled in favor of the school district. In 2018, the Firearms Policy Coalition sued in a similar case in Nevada, where the student had worn a Firearms Policy T-shirt to school and won a declaratory judgment.
Texas: Fifth Circuit
Background: Mock v. Garland: Consolidated Cases: On Nov. 7, a brief for the Plaintiffs-Appellees was filed in the US Court of Appeals for the Fifth Circuit. Their brief acknowledges that both parties agree that oral argument should be held. They state that “The Final Rule violates the APA in several additional respects. The district court correctly held that the Final Rule is arbitrary and capricious because the Agencies reversed a longstanding position without meaningful explanation and drafted a rule with vague standards.”
Background: Case # 4:23-cv-00095: On Aug. 12, the U.S. Government formally appealed to the United States Court of Appeals for the Fifth Circuit. On Jan. 31, 2023, the Firearms Policy Coalition announced they were filing litigation challenging the ATF’s final rule on firearms equipped with stabilizing or pistol braces, Mock v. Garland. On May 23, 2023, the District Court issued a preliminary injunction. ATF appealed the injunction to the US Court of Appeals for the Fifth Circuit, and on June 19, 2023, Judge Reed O’Connor stayed the proceedings at the District Court. On Oct. 2, 2023, the Court granted a preliminary injunction, followed in November 2023 with a plaintiffs’ motion for Summary Judgement and an ATF notice of Appeal. On June 13, Judge O’Connor ruled that the Plaintiff’s Motion for Summary Judgment was granted.
The US Court of Appeals for the Fifth Circuit, which on Dec. 22, 2023, had consolidated the Mock case with Second Amendment Foundation, Inc. v. Bureau of Alcohol (23-11157), Britto v. Bureau of Alcohol (23-11204), Texas Gun Rights v. Bureau of Alcohol (23-111204), and State of Texas v Bureau of Alcohol (23-40685) in an unpublished order on May 23, 2023, granted the preliminary injunction against the Final Rule. On August 1, 2023, The three-judge panel wrote:
“We REVERSE the order denying a preliminary injunction and REMAND with instruction to consider that motion expeditiously. To ensure relative stability, we MAINTAIN the preliminary injunction pending appeal that the motions panel issued on May 23, 2023, as clarified by this merits panel on May 26, 2023.”
District Court
Illinois: Harrel v. Raoul: Judge Stephen P. McGlynn ruled on November 8, 2024, that the “Court must take action as justice demands.” He said PICA is an unconstitutional affront to the Second Amendment and must be enjoined. The Government may not deprive law-abiding citizens of their guaranteed right to self-defense as a means of offense.”
Background:
National Association for Gun Rights v. Naperville: On Dec. 14, 2023, SCOTUS did not issue a temporary injunction against the Protect Illinois Communities Act (PICA).
Harrel v. Raoul and Barnett v. Raoul: This case was filed on Jan. 17, 2023, by the Second Amendment Foundation, The Firearms Policy Coalition, Marengo Guns, Inc., C4 Gun Store, and David Harrel against the large capacity magazine ban that Gov. JB Pritzker signed on that date. On Jan. 25, Plaintiffs filed a motion for a preliminary injunction (PI). All parties agreed on a motion for a coordinated preliminary injunction briefing, adding the following cases: Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly in the US District Court for the Southern District of Illinois. On April 28, Judge Stephen Patrick McGlynn issued a preliminary injunction preventing enforcement of PICA. He wrote, “PICA seems to be written despite the clear directives in Bruen and Heller, not in conformity with them.”
New York: Second Circuit
Heeter v. James: Case 24-cv-00623-JLS: After a shooting in Buffalo, NY, where the assassin wore body armor, Gov. Kathy Hochul rallied the legislature to ban the sale and possession of body armor by citizens. They passed a law that is one of the strictest in the country, banning the sale and ownership of bullet-resistant vests to civilians. After the plaintiffs filed their lawsuit on July 1, 2024, the Attorney General’s office filed a motion to dismiss on August 2, 2024, alleging that the plaintiff did not have standing because they had not suffered a “ concrete injury.” All in all, there were three rounds of motions on the question of standing. The question of standing is a way for those taken to court to explain to the Court that the case should not continue because there is no injury to the plaintiff. On Nov. 8, Judge John L. Sinatra denied the defendants’ motions to dismiss this case and said the case against NY’s ban on body armor would continue. Judge Sinatra wrote:
“Here, Plaintiffs have demonstrated injury-in-fact. They allege “an intention to engage in a course of conduct” arguably protected by the Second Amendment but proscribed by New York law. Specifically, Heeter, Braiman, and Wurtenberg “intend to exercise [their] right to keep and bear body armor for lawful purposes.” And because of challenged restrictions, they are “unable to purchase body armor in New York.”
Plaintiffs also allege a “credible threat” of future enforcement. Specifically, they allege that the Attorney General is “is responsible for enforcing New York’s restrictions on the sale of body armor imposed by” Section 396-eee of the General Business Law. Plaintiffs also point to the Attorney General’s statements following enactment of the restrictions, which suggest that she intends to enforce the law. “Today, New York is taking swift, comprehensive action to combat the gun violence epidemic ….With this new package of gun laws, New York will continue to lead in imposing reasonable gun laws that keep our people safe, and I urge other states to follow suit. The time for thoughts and prayers alone has long passed – now is the time for action”); (“Make no mistake: This decision will not deter us from standing up to the gun lobby …. I vow to use the full force of my office to protect New Yorkers and American families”).
