By Tanya Metaksa
What’s New—SCOTUS: The U.S. Supreme Court is on summer recess. California: USA v. Steven Duarte, AKA Shorty: Case No. 22-50048: On July 17, 2024, Chief Judge Murgia ordered an en banc review; New Jersey:
FPC: Cheeseman v. Platkin (consolidated case): Judge Sheridan held that “AR-15 Provision of [New Jersey’s] Assault Firearms Law is unconstitutional under Bruen.” ; DC: Clemendor v. District of Columbia: Case # 1:24-cv-01955-DLF: Two DC residents filed this case against the DC ban on so-called “assault weapons” on July 3, 2024; Hawaii: Corey Kahalewai v. City and County of Honolulu: Case #: 1:24-cv-00323: On July 31, 2024, the plaintiff Corey Kahalewaai filed in US District Court for the District of Hawaii for a preliminary injunction against the City and County of Honolulu for denying him the right to apply for a permit to carry a concealed handgun; New York: LaMarco v. Suffolk County: Case#: 2:22-cv-04629: After over three years of litigation, Suffolk County has decided to stop the litigation.
Circuit Court
California: Ninth Circuit
USA v. Steven Duarte, AKA Shorty: Case No. 22-50048: On July 17, 2024, Chief Judge Murgia ordered an en banc review. We reported on this case in the Judicial Report of July 24, 2024. What we did not report on at the time was the dissent by Judge VanDyke. Here is Judge Vandyke’s opening paragraph, and I hope that readers read the entire opinion by Vandyke.
“What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?” In the Ninth Circuit, if a panel upholds a party’s Second Amendment rights, it follows automatically that the case will be taken en banc. This case bends to that law. I continue to dissent from this court’s Groundhog Day approach to the Second Amendment.
Interesting fact: Judge Vandyke was one of two judges on the panel who heard Duarte and ruled in favor of Duarte. He also dissented in the Duncan case when it went en banc in 2020. Additionally, @MorosKostas on X (formerly known as Twitter) has an interesting thread on May 14, concerning how often the Ninth Circuit grants en banc in Second Amendment cases. He writes:
“En banc review is rarely granted even though the parties in over 800 decided appeals a year petition for it. Only around ten cases a year get it. But “somehow” all Second Amendment panel wins get en banc, without exception. No Second Amendment loss has ever gotten en banc review, of course. What a coincidence!”
New Jersey: Second Circuit
FPC: Cheeseman v. Platkin: Case # 1:22-cv-04360 and Association of New Jersey Rifle & Pistol Clubs v. Platkin: Case #18-10507: On July 30, 2024, District Judge Peter G. Sheridan ruled on this combined case that dealt with New Jersey’s assault weapons. In a strange decision, Judge Sheridan held that: “AR-15 Provision of [New Jersey’s] Assault Firearms Law is unconstitutional under Bruen and Heller as to the Colt AR-15 for use of self-defense within the home.”
However, Judge Sheridan upheld the magazine ban. The decision has been stayed while both the plaintiffs and the defendants appeal the case.
Background: The first complaint was filed on June 30, 2022. It read: “New Jersey applies the pejorative label of “assault firearm” to a large number of constitutionally protected firearms and criminalizes their possession. N.J. STAT. ANN. §§ 2C:39-1(w), 2C:39-5(f).”
The case was consolidated with the Association of New Jersey Rifle & Pistol Clubs v. Platking and the Ellman, Rogers, and Association of New Jersey Rifle and Pistol Clubs v. Platkin on February 6, 2023. In that decision, Judge Sheridan noted the NJ Attorney General’s propensity for “moving the goalposts.
District Court
DC: US District Court for the District of DC
Clemendor v. District of Columbia: Case # 1:24-cv-01955-DLF: Two DC residents filed this case against the DC ban on so-called “assault weapons” on July 3, 2024. On July 26, the plaintiffs filed a Motion for a Preliminary Injunction to Consolidate with the Merits and for Summary Judgement. As Firearms Policy Coalition mentioned on X (formerly known as Twitter), this procedure was to “speed up” the case.
Hawaii: Ninth Circuit
Corey Kahalewai v. City and County of Honolulu: Case #: 1:24-cv-00323: On July 31, the plaintiff Corey Kahalewaai filed in US District Court for the District of Hawaii for a preliminary injunction against the City and County of Honolulu for denying him the right to apply for a permit to carry a concealed handgun. The plaintiff is not disqualified under Hawaii or federal law from owning, possessing, or carrying a firearm. The plaintiff applied for a Right-to-Carry Permit in May 2023. On March 20, 2024, he received a letter from the Honolulu Police Department (HPD) informing him that his application was denied because he had been investigated for sexual assault and had two now-lapsed protection orders filed against him. The plaintiff is alleging that the HPD rules allow them to deny permits if an applicant has been involved in any incident of alleged domestic violence with the ten years preceding the application.
New York: Second Circuit
LaMarco v. Suffolk County: Case#: 2:22-cv-04629: After over three years of litigation, a letter was sent to Judge Gary Brown from the Suffolk County Attorney’s Office, which stated:“The County now believes that it would not be wise to continue litigating the question of whether the alleged policies challenged in this case comport with the Second Amendment. Instead, the County wishes to resolve this case by making policy changes sought by plaintiffs and affording them pecuniary relief.”
Background: The plaintiffs, Thomas LaMarco and Diane LaMarco, have held valid New York State pistol licenses issued by the Suffolk County Police Department (SCPD) for 15+ and ten years, respectively. On April 8, 2021, the SCPD suspended the plaintiffs’ pistol license because the Department responded to the plaintiffs’ house in 2017 for a “mental health assistance” call related to their adult son. On July 20, 2022, the plaintiffs sued for injunctive relief from this action by the SCPD.
