By Tanya Metaksa
What’s New—SCOTUS has four petitions for certiorari on Second Amendment cases pending; Hartford v. Ferguson: A challenge to Washington state’s newest gun law, HB1240; Barnett v. Raoul: The Plaintiffs have filed a motion for a preliminary injunction while they (the state of Illinois) appeal to Seventh Circuit; Texas v. ATF: On Feb. 9, 2023 the State of Texas, et al sued the BATFE on the enforcing various parts of a Final Rule issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) of the U.S. Department of Justice on January 31, 2023 88 Fed. Reg. 6,478 (Jan. 31, 2023), entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“Final Rule” or “FR”). On April 28 the plaintiffs filed a motion concerning ATF Director Dettelbach’s “erroneous congressional testimony on April 26 as well as informing the court of the opinion in Hardin v. ATF; Rupp v. Bonta: A Daubert Motion was filed by the plaintiffs to exclude the testimony of Ryan Busse, a former gun industry employee who has been used by the anti-gun groups such as Giffords and Everytown, was denied by Judge Josephine L. Staton; Bevis v. Naperville & State of Illinois: a late breaking development with an application for certiorari to SCOTUS that has a response by Justice Amy Coney Barrett.
Supreme Court of the United States
Currently there are four (4) petitions for certiorari pending before SCOTUS on cases that have a nexus to the Second Amendment. Garland v. Cargill, the federal bump stock ban (see below); United States v. Rahimi, domestic violence restraining order gun ban; Joshua Seekins v. United States, a question of flare gun shells; and NRA v. Vullo, a first amendment claim against New York’s Department of Financial Services (DFS). The Court has requested a response in Vullo with a response deadline of May 24, but a motion has been fired to extend that deadline to June 23. In Cargill. As the decision in Hardin v. ATF (see below) joins Cargill in splitting the Circuit Courts’ decisions over the bump stock ban, Andrew Willinger opines that it “appreciably increases the odds that the Court will decide to grant certiorari in Cargill.”
Lawsuits challenging Federal Agencies:
Bumpstock ban
Cargill v. Garland Case: 20-51016. The lawsuit challenges the DOJ’s classification of “bump stocks” as machine guns. The case was initiated in 2019 and the District Court ruled in favor of the DOJ. Then Cargill appealed to the US Court of Appeals for the Fifth Circuit, which decided on March 6, 2023, in favor of the plaintiff:The Final Rule’s interpretations of terms within the statutory definition of “machinegun,” which includes bump stocks and bump stock-type devices, are unreasonable and conflict with the statute. 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, 2023.
This Fifth Circuit case may tip the balance in favor of SCOTUS granting certiorari. There have been two prior bump stock cases in which SCOTUS has denied certiorari: Aposhian v. Garland (Tenth Circuit) and GOA v. Garland (Sixth Circuit). Both of those cases were denied on October 3, 2022.
GOA v. Garland: The plaintiffs in this case have sought an additional 30 days to evaluate the impact of the Defendant’s petition for a writ in Cargill v. Garland.
Hardin v. ATF:In the appeal to the US Court of Appeals for the Sixth Circuit that was argued on January 19.2023 a decision has been delivered. The Court agreed that it is up to Congress, not the ATF, to change the law if bump stocks are to be made illegal…we REVERSE the judgment of the district court and REMAND for further proceedings consisted with this opinion.
Stabilizing Braces
Britto v. BATFE: This action challenges the ATF rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on January 31, 2023. 88 Fed. Reg. 6478 (Jan. 31, 2023). Recently CMMG, a corporation that manufactures AR parts and firearms, requested to intervene in this case and Judge Matthew J. Kacsmaryk denied the motion.
Harrel v. Raoul: Although this case does not concern itself with “stabilizing braces,”
In the preliminary injunction Judge Stephen P. McGlynn writes, “Thus, arm braces are an integral part of the meaningful exercise of Second Amendment rights for such individuals and can also be considered an ‘arm.’”
Texas v. ATF: On Feb. 9, 2023 the State of Texas, Gun Owners of America, Gun Owners Foundation and Brady Brown sued the BATFE on the enforcing various parts of a Final Rule issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) of the U.S. Department of Justice on January 31, 2023 88 Fed. Reg. 6,478 (Jan. 31, 2023), entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“Final Rule” or “FR”). On April 28 the plaintiffs filed a motion about ATF Director Dettelbach’s “erroneous congressional testimony on April 26 as well as informing the court of the opinion in Hardin v. ATF.
Lawsuits challenging Federal Law:
United States v. Zackey Rahimi: This is a case of a man who was involved in five shootings in and around Arlington, Texas between Dec. 2020 and Jan. 2021. He was also under an agreed civil protective order that expressly prohibited him from possessing a firearm and then he was indicted for a violation of U.S.C§ 922(g)(8). The Fifth District Court held that when Rahimi was charged with violating U.S.C§ 922(g)(8) he was not a felon so he was not prohibited from owning firearms.
Attorney General Merrick Garland on March 18 announced that the DOJ would be filing certiorari (an appeal) with SCOTUS and asking the Supreme Court that the federal law remain in place while they review the Fifth Circuit’s findings. Since that date several notable people and groups have filed amicus curiae: Governor Gavin Newson, Texas Advocacy Project, New York County Lawyers Association, State of Illinois, Joshua Horwitz, Tarrant County Criminal District Attorney and a coalition of Gun Violence and Domestic Violence Prevention Groups. The Gun Violence information is on the Giffords website and the amicus brief is also available there.
Lawsuits challenging State Laws
New York: Second Circuit: Five cases listed below were the subject of “expedited appeals” on March 20, 2023” by the US Court of Appeals for the Second Circuit.Three of the cases are appeals from Judges Sinatra and Suddaby’s orders for restraining orders, stays and preliminary injunctions. The fourth case, Gazzola v. Hochul, is an appeal from Judge Sannes’ denial of a TRO or PI: the cases are: Christian v. Nigrelli, Hardaway v. Nigrelli, Spencer v. Nigrelli, Antonyuk, et al v. Hochul, and Gazzola v. Hochul.
California: Ninth Circuit:
Boland v. Bonta: California’s appeal to the Court of Appeals for the Ninth Circuit. After Judge Cormack J. Carney issued a Preliminary Injunction Order determining that the California Unsafe Handgun Act’s provisions…are unconstitutional in the Boland v. Bonta case, it took almost a week for Attorney General Raoul to announce that California will appeal to the Ninth Circuit. California has appealed to the Ninth Circuit and on March 31 the Ninth Circuit issued a stay in part. California’s appeal to the Court of Appeals for the Ninth Circuit.
Renna v. Bonta: Following the PI in Boland v. Bonta, Judge Dana M. Sabraw issued a PI (preliminary injunction) against the California Unsafe Handgun Act’s provisions. Both cases have occurred within a 2-week timeframe. On April 14 CA AG Bonta filed an appeal to the US Court of Appeals for the Ninth Circuit; of Appeals
CASES BEING TRIED TOGETHER in Judge Benitez’ courtroom and an opinion is expected to be published in May 2023.
Miller v. Bonta: On March 20, 2023 Judge Benitez ruled that (assault weapons ban) § 1021.11 of the California Code of Civil Procedure is unconstitutional. We can assume that this will be appealed to the Ninth Circuit Court of Appeals.
Duncan v. Bonta: (large capacity magazines) The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A summary by @KostasMoros on Twitter can be found here.This lawsuit deals with CA law passed in 2016 that banned the mere possession of magazines with over ten rounds.
Rhode v. Bonta: (ammunition purchase restrictions)Briefs have been filed by both sides as of Feb 21, 2022. The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here.
Other CA cases:
Rupp v. Bonta: This case challenges California’s assault weapon ban and was originally filed in 2017. On April 3, 2023 a Joint Stipulation and Proposed Order to Modify Pretrial Deadlines Motion was filed and on April 7 the Court made changes when it filed its order. The court ordered that 1. The deadline to file dispositive motions remains May 26, 2023; 2. The hearing on the Plaintiffs’ Daubert motion is April 28; 3. The deadline to file motions in limine has been continued to August 4, 2023 and the Final Pretrial Conference is continued to September 1, 2023. A Daubert Motion was filed by the plaintiffs to exclude the testimony of Ryan Busse, a former gun industry employee who has been used by the anti-gun groups such as Giffords and Everytown, was denied by Judge Josephine L. Staton.
District of Columbia: DC Circuit
Hanson v. DC: Plaintiffs own pistol and want to equip them with large-capacity magazines (LCM) that are banned under DC law. Judge Rudolph Contreras denies plaintiffs’ motion for a preliminary injunction.
Smith v. DC: This case was brought in 2015 by a group of plaintiffs who are four non-residents and two residents of the District of Columbia who, over the course of time between May 15, 2012 and October 10, 2014, were arrested by the Metropolitan Police Department on gun-related charges. On 9/12/2021 Judge Royce C. Lamberth granted the plaintiffs motion on plaintiffs’ Second Amendment claims that DC gun laws were unconstitutional. He wrote, the District violated the plaintiffs’ Second Amendment rights…based on an unconstitutional set of D.C. laws. He also granted the non-residents motion for summary judgement on the fact that DC gun laws also violated their Fifth Amendment rights to travel and equal protection. On 10/8/2021 a motion to stay and a motion on mediation was issued by Judge Lamberth. Since that time thirteen extensions have been granted and on 4/14/23, the District requested another 30-day stay.
Allen v. DC: DC has requested an extension of time that has reset the deadlines in this case. In a case where the DC government revoked a carry permit, Judge Tanya Chutkan denied the DC motion to dismiss the Second Amendment claim that challenged the permit revocation.
Brady Center v. US Dept of State: The Brady Center first submitted a FOIA request on July 16, 2018 concerning the settlement between Defense Distributed and the State Department. Five months later Brady sued because “the agency has failed to process the FOIA request in a timely and expeditious manner.” Since that time the two parties have been cooperating in getting the FOIA processed. On April 14, 2023 they requested to file a joint status report on June 14.
Illinois: Seventh Circuit
Cases currently in the federal court system challenging the newly passed Illinois Public Act 102-1116 (HB5471), the new IL gun control law.:Accuracy Firearms, LLC et al v. Pritzker; Langley v. Kelly; Barnett v. Raoul and Harrel v. Raoul: Also see Caulkins v. Pritzker under State Court cases.
Harrel 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 was signed by Gov. Pritzker on that date. On Jan. 25 Plaintiffs filed a motion for a preliminary injunction (PI). After several motions for delays, all parties reached an agreement on a motion for a coordinated preliminary injunction briefing adding the following cases: Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, Langley v. Kelly in US District Court for the Southern District of Illinois. On April 28 Judge Stephen P. McGlynn issued a preliminary injunction to prevent the enforcement of PICA. He wrote “PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them” and he enjoined the state from enforcing PICA.
Barnett v. Raoul: The Plaintiffs have filed a motion for a preliminary injunction while they (the state of Illinois) appeal to Seventh Circuit. One interesting result is that Palmetto State Armory has begun accepting orders from IL for firearms that were banned by HB1240. A thread on twitter by @BishopOnAir of the consolidated case against the Illinois’ gun ban is a very interesting read for gun owners.
Bevis v. Naperville & State of Illinois: A lawsuit against the city of Naperville’s assault weapons and magazine bans. Judge Kendall of the United States District Court for the Northern District of Illinois eastern division denied the plaintiffs motion of the preliminary injunction. The case was appealed to the US Court of Appeals for the Seventh Circuit and the plaintiffs filed a motion for an injunction pending appeal. On April 18, the Court of Appeals denied the motion. The original plaintiffs then made an emergency appeal to the US Supreme Court, where Justice Amy Coney Barrett is the Justice that responds to appeals from the Seventh Circuit. The question that was asked of SCOTUS in this appeal was: “Can the government ban the sales, purchase and possession of certain semi-automatic firearms and firearms magazines, tens of millions of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by D.C. v. Heller and NYSRPA v. Bruen?”In Justice Barrett’s response to this application she directed the defendants to answer why these laws do not violate the Second Amendment by noon on May 8.
Minnesota: Eight Circuit
Worth v. Harrington: Minnesota’s 2003 Citizens’ Personal Protection Act required applicants to be “at least 21 years of age.” In this case three plaintiffs under the age of 21 brought suit against their respective sheriffs for enforcing the Minnesota statute. Judge Katherine Menendez on March 31 stated that Minnesota Law requiring “a person must be at least 21 years of age to receive a permit to publicly carry a handgun in Minnesota violates the rights of individuals 18-20 years old to keep and bear arms protected by the Second and Fourteenth Amendments.” As of April 1 Judge Menendez put a hold on entering final judgement until the MN AG’s emergency order is ruled upon. The Plaintiffs filed their response to a stay on April 5. On April 24 Judge Menendez GRANTED the Commissioner’s Motion for a Stay.
Firearms Industry Lawsuits
Oregon: Ninth Circuit
Oregon Firearms Federation v. Tina Kotek: Four of the five lawsuits against Measure 114 have been consolidated by Judge Karen Immergut underthis case. An expedited trial is scheduled for June 5, 2023. On 4/14/23 the plaintiffs made a motion for a PI and Judge Immergut Denied that motion. On 4/19/23 the judge ordered a protective order regarding information in this case would maintain the anonymity of the party releasing the information.
Texas: Fifth Circuit
USA v. Paola Connelly: Defendant, Paola Connelly, sought a motion for reconsideration that was granted by Judge Katherine Cardone and Connelly’s charges were DISMISSED. Judge Cardone wrote: “922(g)(3) and (d)(3) are unconstitutional, saying the former is like “a law that would prevent individuals from possessing cars at all if they regularly drink alcohol on weekends.” This case has some similarities to the United States v. Zackey Rahimi as they both deal with federal law sections 922(g)(3) and (d)(3).
Washington: Ninth Circuit
Hartford v. Ferguson: Plaintiffs seek declaratory and injunctive relief: a declaration that Washington’s ban on manufacturing, importing, distributing, selling, or offering for sale commonly possessed semiautomatic rifles violates the Second and Fourteenth Amendments…Gov. Inslee’s signing was not over before this lawsuit over the new “assault weapons” ban was filed on April 25 by the Second Amendment Foundation.
