By Tanya Metaksa
What’s New—SCOTUS: Declined to become involved in the Second Circuit staying Judge Glenn T. Suddaby’s injunction in a challenge of New York’s new gun control scheme; Since Illinois just passed an onerous “assault weapons” ban, lawsuits have been filed: Accuracy Firearms, LLC et al v. Pritzker and Harrel v. Raoul (the latter being a Second Amendment Foundation-led case); Additionally as of Jan. 13, 74 Sheriff’s departments have vowed to not enforce elements of the new law; California: SCI v. Bonta: A lawsuit against AB2571 and its amendments Judge Dale A. Drozd denied plaintiff’s motion for a preliminary injunction; Boland v. Bonta: Hearing scheduled on PI for Jan. 23, 2023; Maryland: MSI v. Hogan: scheduled for hearing Mar 7-10, 2023. New Jersey: Koons v. Reynolds: After Judge Renee Marie Bumb in Koons v. Reynolds issued an order: “the motion for a temporary restraining order will be GRANTED,” The ANJRPC requested to consolidate the Siegle v. Platkin case and the Koons v. Reynolds cases. Judge Williams, who was assigned Siegle v. Platkin, agreed to the transfer to Judge Bumb; New York: US Court of Appeals for the Second Circuit announced that all 4 cases on appeal will be the subject of “expedited appeals” that “will be held in tandem on March 20, 2023;” Oregon Measure 114: Judge Raschio’s court is still holding up the implementation of Measure 114 and the state Attorney General’s office has asked the state Supreme Court to take action so the law may be implemented.
SCOTUS Activity
Antonyuk v. Nigrelli: This lawsuit challenges “various provisions of New York’s newly minted by ineptly named “Concealed Carry Improvement Act (CCIA)”.Itwas filed on Sept. 20 and Judge Glenn T. Suddaby on November 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay. The state of NY then appealed to the US Court of Appeals for the Second Circuit, requesting a stay and the stay was granted on Dec. 7. On Jan. 9, the plaintiffs filed their response to the Stay issued in Dec. by filing an application to the United States Supreme Court (SCOTUS). Unfortunately SCOTUS declined to lift the stay at this time and Justice Alito (with Justice Thomas concurring) issued a statement that warned “Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.”
Federal cases
Lawsuits challenging Federal Agencies:
Cargill v. Garland: In the Fifth Circuit Court of Appeals by a 13 -3 vote the ruling read: “Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of “machinegun” set forth in the Gun Control Act and National Firearms Act…Therefore we must REVERSE.”The Court has ruled that Congress must pass gun laws, not the BATFE. Due to disagreement between circuit courts, it is likely this case may be appealed to the U.S. Supreme Court.
VanDerStok v. Garland: Firearms Policy Coalition (FPC) filed a lawsuit on Aug. 11 challenging BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers”as firearms in the United States District Court for the Northern District of Texas. On Nov. 2Judge Reed O’Connor granted Second Amendment Foundation and Defense Distributed’s motion to intervene and then on Nov. 3 he granted BlackHawk Manufacturing Group’s motion for a preliminary injunction. Earlier in September Judge O’Connor stated that the “definition of a firearm in the Gun Control Act does not cover all firearms parts” and granted a preliminary injunction to plaintiff Tactical Machining, but not to its customers and requested further briefing.
Morehouse Enterprises v. ATF: Judge Peter D. Welte not only denied the preliminary injunction sought against the “ATF from enforcing various parts of an omnibus rule scheduled to take effect Aug. 24”, but found the Plaintiffs motion for oral argument Moot. As a result, the plaintiffs are seeking an interlocutory appeal of that order with the Court of Appeals and have requested that the proceedings before the District Court be stayed until the appeal is adjudicated.The ATF rule regulated unfinished, nonfunctioning firearm components identically to finished and operational firearms.This case has been joined by 17 states attorneys general.
Lawsuits challenging State Laws:
New Jersey: Third Circuit: Judge Renee Marie Bumb on January 9 issued her first order in Koons v. Reynolds “the motion for a temporary restraining order will be GRANTED,”and wrote thatthe new law“essentially renders the entire state of New Jersey a ‘sensitive place’ where firearms are prohibited.” After the Judge Bumb ruling the ANJRPC requested to consolidate the Siegle v. Platkin caseand the Koons v. Reynolds cases. Judge Williams, who was assigned Siegle v. Platkin, agreed to the transfer to Judge Bumb. The Koons case is being supported by the Second Amendment Foundation, Firearms Policy Coalition and several other groups. The Siegel case is supported by the National Rifle Association (NRA) and the Association of New Jersey Rifle & Pistol Clubs, Inc.(ANJRPC)
New York: Second Circuit: the legislature went to great lengths to ensure that Bruen does not allow civilians the Right-to-Carry guns by passing the Concealed Carry Improvement Act (CCIA). More and more cases are being filed against this 2022 firearms law and others that predated Bruen. Four cases listed below to the US Court of Appeals for the Second Circuit will be the subject of “expedited appeals” that “will be held in tandem on March 20, 2023.”Three of the cases are appeals from Judges Sinatra and Suddaby’s orders for restraining order, stays and preliminary injunctions. The fourth case, Gazzola v. Hochul, is an appeal from Judge Sannes’ denial of a TRO or PI.
Antonyuk, et al v. Hochul:. This lawsuit challenges “various provisions of New York’s newly minted by ineptly named “Concealed Carry Improvement Act (CCIA).”Itwas filed on Sept. 20 and Judge Glenn T. Suddaby on November 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay. The state of NY then appealed to the US Court of Appeals for the Second Circuit, requesting a stay and the stay was granted on Dec. 7. On Jan. 9 the plaintiffs filed their response to the Stay issued in Dec.
Hardaway v. Nigrelli: AfterNY Judge John L. Sinatra, Jr. ruled on Oct. 10 that the section of NY’s new CICA making it a felony to possess a firearm at “any place of worship or religious observation” was unconstitutional, he granted a preliminary injunction stopping the enforcement of this part of the CICA.
Christian v. Nigrelli:, Although “A preliminary injunction, effective immediately from enforcing N.Y. Pen.L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022, the U.S. Court of Appeals for the Second Circuit issued a stay on Dec. 12, 2022. This case filed in the US District Court for the Western District of New York challenges the enactment of S51001. Briefing schedule ordered for US Court of Appeals for the Second Circuit: Dec. 13, 2022—Defendants (Nigrelli) opening brief due Jan. 22, 2023; Plaintiffs (Christian) opposition brief March 6, 2023, any reply brief by March 22, 2023.
Gazzola v. Hochul: This case filed on Nov. 1, 2022 challenges most all parts of New York State gun laws enacted between May 30, 3033 and July 1, 2022. The lawsuit includes 125 complaints against these laws. On December 7 Judge Brenda K. Sannes denied plantiffs’ motion for a TRO or a Preliminary Injunction (PI) and subsequently plaintiffs appealed to the US Court of Appeals for the Second Circuit.
Other current New York cases in the Second Circuit: Another case that addresses guns in places of worship is Goldstein v. Hochul that was brought by a congregant and the Congregation of Bnei Matisyahu in Brooklyn, NY.
Corbett v. Hochul (7/1//2022), challenging the required disclosure of social media accounts. Motion for a preliminary injunction DENIED.
NYSR&PA II v. Bruen: The next iteration of the SCOTUS case—challenging the 2022 firearms laws.
National Shooting Sports Foundation v. Letitia James: This case deals with the enactment of a NY law to hold the gun industry civilly liable for “public nuisances.” NSSF filed this case on December 16, 2021 and then in May 2022 Judge Mae D’Agostino ruled in favor of the defendant. NSSF has now appealed this ruling to the US Court of Appeals for the Second Circuit. The Attorneys for the Appeal are Clement & Murphy.
California: Ninth Circuit:
California: SCI v. Bonta: A lawsuit against AB2571 and its amendments. Judge Dale A. Drozd denied plaintiff’s motion for a preliminary injunction on Jan. 12.
South Bay Rod & Gun Club v. Bonta: This case challenges the 2022 law passed as SB1327, allowing individuals to file civil suits against anyone who is involved in selling banned firearms or firearm parts. Judge Roger T. Benitez did not allow the state’s challenge to succeed and the case continues.
Rhode v. Bonta: This case began in 2016 as Rhode v. Becerra: The plaintiff is Kim Rhode, an American OLYMPIC medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996. 3 gold medals, 1 Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Roger Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision The U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez and then that court vacated and remanded the case back to the District Court for the Southern District of California to be revisited based on the Bruen case. All restrictions on purchasing ammunition in California that have been in effect for almost 5 years still remain
Miller v. Bonta: The US Court of Appeals for the Ninth Circuit has REMANDED and VACATED this case back to the District Court and a hearing on the motion for a Preliminary injunction was held on 11/28/22. On 12/1/2022 Judge Roget T. Benitez issued a written order stating that the lawsuit is NOT MOOT and it will continue.
Boland v. Bonta: Dec. 14, Judge Cormac J. Carney ordered a Jan. 23 evidentiary hearing for the Preliminary Injunction sought by the plaintiffs.
Jones v. Bonta: Originally Jones v. Becerra. The US District Court for the Southern District of California “held that California’s ban was a severe burden on the core Second Amendment right of self- defense in the home.” After California appealed to an “en banc” panel of the Ninth District Court of Appeals, the Ninth Circuit granted the request and then vacated and remanded the case “consistent with the US Supreme Court’s decision in NYSR&PA v. Bruen. The court again denied the Plaintiffs’ motion for preliminary injunction as MOOT. A re-briefing schedule has been set for 2023.
CRPA v. Glendale: New case brought by CRPA challenging city ordinance banning guns on city property. Judge Blumenfeld ruled against a preliminary injunction and asked plaintiffs to seek “a more narrowly focused motion” and meet with defendants about areas that CRPA members are precluded from carrying firearms.”
Junior Sports Magazine, et. al v. Bonta: The request for an emergency motion for a writ of mandamus was denied by Judge Christine A. Snyder of the US District Court for the Central District of California. As a result, the plaintiffs, The Second Amendment Foundation, CRPA, Gun Owners of California, California Youth Shooting Sports Association et al. have filed an appeal with the Ninth Circuit Court.
Colorado: Tenth Circuit
Two different judges have issued Temporary Restraining orders to halt the bans on the sale, possession and transfer of commonly owned semi-automatic rifles in the towns of Boulder and Superior. After the legislature repealed the Colorado firearms preemption statute in 2021 both towns banned so-called assault weapons. In both cases, RMGO v. The town of Superior and RMGO v. The town of Boulder, judges have granted temporary restraining orders (TRO) citing the Bruen case. In late August the city of Boulder announced it is not enforcing its “assault weapons” ban until it can “legally coordinate” with its neighboring jurisdictions. On Sept. 16 Federal judge Raymond P. Moore declined to combine four lawsuits that have been initiated in Boulder County and its towns into one. He commented, “If anyone thinks the district court is going to have the last say on this, they’re kidding themselves, Come on.” The city of Longmont has postponed consideration of an “assault weapons” ban until June 2023.
Delaware: Third Circuit
Rigby v. Jennings: A challenge to Delaware billHB 125, that became law in 2021, criminalized the possession, manufacture, and distribution of unserialized firearms, and untraceable and unfinished firearm components. In Sept. 2022 Judge Maryellen Noreika granted a preliminary injunction to prohibit the enforcement of most of this law pending the resolution of the lawsuit. Judge Noreika stated that the plaintiffs “are likely to succeed in their argument’ that the law violates the Second Amendment.
Hawaii: Ninth Circuit
NAGR v. Shikada: A challenge to Hawaii’s Pistol Statutes was initiated on Nov. 18, 2022 in the US District Court for the District of Hawaii.
Teter v. Shikada: On appeal from the US District Court for the District of Hawaii this case concerning HI ban of butterfly knives is scheduled of oral arguments on Feb. 14, 2023.
Yukutake v. Shikada: On appeal from the US District Court for the District of Hawaii this case concerning HI registration laws is scheduled of oral arguments on Feb. 14, 2023.
Illinois: Seventh Circuit
Accuracy Firearms, LLC et al v. Pritzker: This case has been filed on January 17, 2023 in The Circuit Court Of The Fourth Judicial Circuit Effingham County, Illinois by Thomas DeVore, a former candidate for Illinois Attorney General.
NAGR v. City of Naperville, IL: A challenge to Naperville’s assault weapons ban.
Maryland: Fourth Circuit
Maryland Shall Issue v. Hogan: The current case which is before the Fourth Circuit deals with the Second Amendment challenge to the Handgun Qualification License (HQL). Arguments before the US Court of Appeals for the Fourth Circuit are tentatively calendared during the March 7-10 2023 session. This case was originally brought by Maryland Shall Issue in 2016 after the Maryland legislature passed a law requiring a HQL. The suit alleges that the HQL requirements, both as set forth in the statute, and as implemented by the Maryland State Police, violate the Second Amendment of the Constitution by placing unjustifiable and overwhelming burdens on the right of law-abiding citizens to purchase a handgun for the home.
Bianchi v. Frosh: This is a case against Maryland’s “assault weapons” ban law brought by the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms and the Firearms Policy Coalition on Dec. 1, 2021 in the US District Court for the District of Maryland. It was dismissed on March 4, 2021 and was appealed to the U.S. Supreme Court. After the Bruen decision SCOTUS vacated and remanded the case back to the Fourth Circuit. It was reopened on August 1 and oral arguments have been scheduled for Dec. 16, 2022. On Oct. 31, 2022 the plaintiffs filed a supplemental reply brief arguing that the case should be decided based on the Bruen decision rather than remanded to a lower court.
MSI v. Montgomery County: Pre-motion conference allows the Plaintiffs to file a motion for a Temporary Restraining Order and a Preliminary Injunction. Since the pre-motion conference, defendant has filed a motion to remand to state court and opposition to emergency motion for TRO. In January Everytown has filed a motion to support defendants (the state of Maryland) with an amicus brief.
Massachusetts: First Circuit
Morin, Alfred v. Lyver, William, et al was granted a writ of certiorariand then vacated and remanded it to the United States Court of Appeals for the First Circuit. This case challenges state law that denies anyone convicted of non-violent misdemeanors from purchasing firearms. Dr. Alfred Morin was convicted of a non-violent misdemeanor for carrying a gun in Washington, DC in 2004. At the time he was licensed by the state of Massachusetts to carry a gun. As a result of this conviction for which he did not serve any jail time, the state now bars him from obtaining a permit to purchase a handgun. Dr. Morin’s case was appealed to the First Circuit Court of Appeals, which ruled in favor of the state. Now the Appeals court has been ordered to review this case in light of the Bruen decision.
Granata v. Healey: This case was brought in 2021 challenging the Massachusetts handgun regulatory scheme. On May 19, 2022 Judge Rya W. Zobel in the US District Court for the District of Massachusetts ruled “the challenged regulations therefore pass intermediate scrutiny.” In June an appeal was initiated to the US Court of Appeals for the First Circuit. Plaintiffs filed a motion for Vacatur and Remand as a result of the Bruen decision. On Oct. 11, 2022 the Court denied the motion and the briefing schedule remains in effect.
Oregon: Ninth Circuit
Oregon-Measure 114: There are now five lawsuits that have been filed against Measure 114.
Oregon Firearms Federation v. Kate Brown, Fritz v. Rosenblum, Eyre v. Rosenblum, initiated by the National Shooting Sports Foundation on Dec. 1, Azzopardi v. Rosenblum, initiated on Dec. 2 that argues the gun sales will cease in Oregon, and Arnold v. Brown, initiated by Gun Owners of America in a state court with Judge Robert S. Raschio presiding. Raschio first issued a temporary restraining order (TRO) blocking Measure 114. The Oregon Supreme Court denied the defendants’ request to throw out the TRO. On Jan. 3, 2023 Judge Raschio issued an opinion letter that did NOT remove the background check provisions from the TRO that the state of Oregon had also requested. The TRO will stand until Raschio’s court determines the constitutionality of Measure 114.
Rhode Island: First Circuit
Ocean State Tactical v. Rhode Island: the plaintiffs have converted their request for a Temporary Restraining Motion to a Motion for a Temporary injunction against the 10-round magazine law that recently passed the legislature.
Washington: Ninth Circuit
Miller v. Atkins: The U.S. Court of Appeals for the Ninth Circuit vacated and remanded the case back to the District Court as a result of the SCOTUS Bruen decision.
