By Tanya Metaksa
What’s New—SCOTUS: Two petitions for certiorari were denied; Texas: Fifth Circuit: ATF is now prohibited from enforcing its new rule on all GOA members, VCDL members, TFA members, and anyone in the whole state of Texas; RMGO v. Polis: Case #23-4354: Oral arguments were held in this case on May 15; USA v. Robert Hunter Biden: Case#:1:23-cv-00061-MN: Judge Noreika rejected Hunter Biden’s request to delay his trial, then the US Court of Appeals for the Third Circuit Denied an appeal from Hunter Biden; Neuberger v. McQueen: a lawsuit challenging Delaware’s new Permit to Purchase; Ortega v. Grisham: The NRA Institute for Legislative Action filed this case in the US District Court for the District of New Mexico on May 15; Lane v. Rocah: New York state officials filed their memoranda on May 15.
SCOTUS
Conferences are scheduled for May 23 and 30. The orders from each conference will be issued on the following Monday at 7 a.m. EDT—May 28 and June 3.
On May 20, SCOTUS DENIED certiorari in two Second Amendment cases: Srour v. New York City, NY, and Bianchi v. Brown. In the Bianchi case, the Court wrote: The petition for a writ of certiorari before judgment is denied. According to @fourboxesdiner, this comment illustrates that SCOTUS does not want to decide cases before a final decision at the Appeals level.
Court of Appeals
Colorado: Tenth Circuit
RMGO v. Polis: Case #23-4354: During February, Governor Polis requested an extension until March 31, but the deadline was only extended to March 13. Oral arguments were held in this case on May 15.
Background: RMGO v. Polis (Case# 1:23-cv-01077-PAB-NRN), plaintiffs aged 18-29 years of age, filed a complaint against Colorado Governor Jared Polis on April 28, 2023, in the US District Court for the District of Colorado. On August 7, 2023, Chief United States District Judge Philip Brimmer ordered:
ORDERED that the portion of plaintiffs’ Motion for Preliminary Injunction [Docket No. 12] brought on behalf of plaintiffs Tate Mosgrove and Adrian S. Pineda is GRANTED. It is further
ORDERED that the defendant and his officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this preliminary injunction are enjoined, effective immediately, from enforcing SB23-169. It is further
ORDERED that this preliminary injunction shall remain in effect pending disposition of the case on the merits.
On Aug. 21, 2023, Gov. Polis appealed to the US Court of Appeals for the Tenth Circuit requesting a stay pending appeal, which the Circuit Court denied on Aug. 29, 2023. Firearms Policy Coalition announced on Feb. 14 that it was filing an amici curiae brief in this case.
Delaware: Third Circuit
USA v. Robert Hunter Biden: Case#:24-1703: After Judge Noreika’s denial (see below Case#:1:23-cv-00061-MN) the US Court of Appeals for the Third Circuit Denied Hunter Biden’s appeal for an Emergency Motion for An Administrative Stay and Permanent Stay of District Court Proceedings Pending Appeal and Stay of This Court’s Consideration of Biden’s Petition for Panel Rehearing and Rehearing En Banc on May 21, 2024..
District Courts
Delaware: Third Circuit
USA v. Robert Hunter Biden: Case#:1:23-cv-00061-MN: AP reported: “U.S. District Judge Maryellen Noreika rejected Hunter Biden’s request to push the trial in Delaware until September, which the defense said was necessary to line up witnesses and review evidence handed over by prosecutors. The judge said she believes “everyone can get done what needs to get done” by the trial’s start date of June 3.”
Background: On July 27, 2023, the government brought criminal charges against Robert Hunter Biden, son of President Joe Biden, in the area of failure to pay taxes and charged with possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance in violation of 18 United States Code Sections 922(g)(3) and 924(a)(2). On May 9, Hunter Biden’s motion to dismiss his gun charges based on 18 U.S.C. § 922(g)(2) was denied by District Judge Maryellen Noreika.
Neuberger v. McQueen: Case #:to be assigned
On May 16, the NRA announced that it would be filing a lawsuit challenging Delaware’s new Permit to Purchase, which Governor John Carney had signed into law that day. The plaintiffs include three individuals, the Delaware State Sportsmen’s Association and the Bridgeville Rifle and Pistol Club. The complaint alleges that the law violates the Second Amendment, Fourth Amendment, and the Delaware Constitution’s right to keep and bear arms.
New Mexico: Tenth Circuit
Ortega v. Grisham: Case #:24-cv-00471: The NRA Institute for Legislative Action filed this case in the US District Court for the District of New Mexico on May 15. This case challenges the new NM Waiting Period Act enacted in March 2024. This law requires a seven-day waiting period even if the report comes back clean in less time or the buyer has passed the federal NICs check.
New York: Second Circuit
Lane v. Rocah (7:22-cv-10989): During May, the Office of the Attorney General requested to expand their memoranda to fifty pages, which was denied. Thus on May 15, both Defendant District Attorney Miriam E. Rocah’s Memorandum of Law Joining Defendant Steven G. James’ Opposition to Plaintiffs’ Motion for Summary Judgment and Cross-motion for Summary Judgment and Superintendent James’ Memorandum Of Law In Opposition To Plaintiffs’ Motion For Summary Judgment And In Support Of His Cross-Motion For Summary Judgment were delivered to the Court.
Background: On Dec. 30, 2022, J. Mark Lane and James Sears filed a complaint against New York State’s so-called assault weapons ban, seeking a permanent injunction. Attorney General James, a defendant in this case, spent the better part of a year getting removed from this case. The case became Lane v. Rocah. Then, the remaining defendants tried to get the judge to deny the plaintiffs’ standing in this case. On Jan. 4, the defendants’ motions were denied, and a schedule of new motion dates was set. On Jan. 22, Superintendent of NY State Police Dominick L. Chiumento requested Judge Kenneth M. Karas for a stay pending the Second Circuit case of NAGR v. Lamont. On a copy of the plaintiff’s letter opposing a stay, Judge Karas wrote, “The Court will not impose a stay. Defendants are to explain, in a letter due by 1/30/24, what discovery they need and how long they need to obtain it. Plaintiffs are to respond by 2/2/24.”On March 15, 2022, plaintiffs filed a memorandum of law in support of the plaintiffs’ motion for summary judgment.
Texas: Fifth Circuit
State of Texas, et al v. BATFE: Case 2:24-cv-00089-Z: On May 1, 2023, the states ofTexas, Louisiana, Mississippi, And Utah, Jeffrey W. Tormey, Gun Owners Of America, Inc., Gun Owners Foundation, Tennessee Firearms Association, And Virginia Citizens Defense League challenged BATFE’s “Definition of “Engaged in the Business” Final rule, 89 Fed. Reg. 28968. The lawsuit alleges that: “The Final Rule goes far beyond the subtle change Congress made to the law, subjecting hundreds of thousands of law-abiding gun owners to presumptions of criminal guilt for all manner of activities relating to the innocuous, statutorily authorized, and constitutionally protected private sale of firearms.”
The Plaintiffs also sought an “urgent” review because the BATFE had “accelerated the effective date of their latest edict to a mere 30 days from publication in the Federal Register, in an attempt to circumvent timely judicial review.”The Final Rule was published on April 19, making the effective date May 20, 2024. On May 19, Judge Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas Issued a Memorandum Opinion and Order.
Defendants are at this moment TEMPORARILY RESTRAINED from enforcing the regulations – “Definition of ‘Engaged in the Business’ as a Dealer in Firearms” (hereinafter “Final Rule”) – published at 89 Fed. Reg. 28968 (April 19, 2024) (to be codified at 27 C.F.R. pt. 478) against Plaintiffs Texas, Jeffery Tormey (“Tormey”), the Gun Owners of America, Inc.(“GOA”), the Gun Owners Foundation (*GOF*), the Tennessee Firearms Association (“TFA”), and the Virginia Citizens Defense League (*VCDL*), through June 2, 2024.”
