By Tanya Metaksa
What’s New— Hawaii: Wolford v. Lopez: Almost three weeks after the lawsuit was docketed at the Ninth Circuit, the state of Hawaii has yet to file a motion to stay the preliminary injunction; Two cases dealing with state sponsored magazine bans had completely different outcomes this week: Washington—Brownback v. Ferguson and California—Duncan v. Bonta; New Mexico: Donk v. Grisham: A hearing on the Temporary restraining order is set for Oct. 3 in Albuquerque; Fifth Circuit: VanDerStok v. Garland: Supplemental briefs in response to the Court’s order filed on 9-26 with Oral Arguments on Motion to Vacate the Injunction pending Appeal scheduled for 9-28; Pennsylvania: Williams v. Garland: Challenge to a lifetime Second Amendment ban for person convicted of a non-violent crime; New York: Bruen costs revisited.
Stabilizing Braces
There are cases challenging the BATFE rule entitled “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’” (“the Rule”) which was published in the Federal Register on Jan. 31. To date six Courts, including the US Court of Appeals for the Fifth Circuit have issued limited injunctions against this BATFE rule that became effective on June 1. On Aug. 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit
Texas: Fifth Circuit: Mock v. Garland: Supplemental briefs in response to the Court’s order filed on 9-26 with Oral Arguments on Motion to Vacate the Injunction pending Appeal scheduled for Sept. 28.
Background: This case was brought by Firearms Policy Coalition on Jan. 31, asking for a Vacatur of the ATF action and/or a preliminary injunction. On March 30, District Judge Reed O’Connor denied both requests of the plaintiffs. On that same date the plaintiffs requested a preliminary injunction of the rule pending appeal and filed an appeal to the US Court of Appeals for the Fifth Circuit. Oral arguments were held June 29.
On Aug. 1, the US Court of Appeals for the Sixth Circuit ruled that the plaintiffs are likely to win on the merits of their APA claim against the ATF’s pistol brace rule and has remanded the case to the district court with instructions to reconsider the motion for preliminary injunction. The entire order is online. The most salient part comes on Page 38, Section V where the Court states that the district court “has not conducted extensive fact-finding or built a record for this court, we remand for a ruling on a preliminary injunction.” The Fifth Circuit even goes on to say, “In these circumstances, we reasoned that ‘limiting the relief to only those before [the court] would prove unwieldy and would only cause more confusion.’”
On Aug. 18 the plaintiffs filed their supplemental brief in support of their motion for preliminary injunction and on Sept. 1 attorneys representing BATFE filed a supplemental brief in opposition to the plaintiffs’ motion. On Sept. 8, the plaintiffs filed a supplemental reply brief. The Court then asked for briefs on the motion to vacate.
Challenge to Federal Law §922(g)(1)
Pennsylvania: Third Circuit
Williams v. Garland: This case is to allow Edward A. Williams to regain his Second Amendment rights that have been denied due to non-violent misdemeanor (driving under the influence of alcohol). A motion for summary judgment has been filed for the fourth time since its inception in 2017.
Challenge to Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Duncan v. Bonta: On Sept. 22, U.S. District Court Judge Roger T. Benitez in San Diego ordered an injunction against California’s ban on magazines that hold more than 10 rounds.
“Removable firearm magazines of all sizes are necessary components of semiautomatic firearms,” Judge Benitez wrote in his 71-page ruling. “Therefore, magazines come within the text of the constitutional declaration that the right to keep and bear arms shall not be infringed. Because millions of removable firearm magazines able to hold between 10 and 30 rounds are commonly owned by law-abiding citizens for lawful purposes, including self-defense, and because they are reasonably related to service in the militia, the magazines are presumptively within the protection of the Second Amendment. There is no American history or tradition of regulating firearms based on the number of rounds they can shoot, or of regulating the amount of ammunition that can be kept and carried. The best analogue that can be drawn from historical gun laws are the early militia equipment regulations that required all able-bodied citizens to equip themselves with a gun and a minimum amount of ammunition in excess of 10 rounds.
“Because the State did not succeed in justifying its sweeping ban and dispossession mandate with a relevantly similar historical analogue, California Penal Code § 32310, as amended by Proposition 63, is hereby declared to be unconstitutional in its entirety and shall be enjoined,” the judge continued. “At this time, the Court’s declaration does not reach the definition of a large capacity magazine in California Penal Code § 16740 where it is used in other parts of the Penal Code to define other gun-related crimes or enhance criminal penalties.”
In his opinion Judge Benitez not only disabused the state of California that 10-round magazines were more than enough for self-defense, he also pointed out that the Militia Act of 1792 “required a citizen to be equipped to fire at least 20 to 24 shots.” In analyzing California’s list of historical analogues he takes apart their “best Historic analogue”, the New York City gunpowder storage law. “The gunpowder storage law has nothing to do with gun violence,” he observed. “It was a fire safety regulation.”
California Attorney General Rob Bonta lost no time in appealing to the US Court of Appeals for the Ninth Circuit on the same day as Benitez’s opinion was issued.
Background: The hearing on this case was held in May 2023 along with Rhode v. Bonta (ammunition purchase restriction) and Miller v. Bonta (assault weapons ban).The state’s listing of all relevant statutes (their brief) can be found here and the CRPA (plaintiffs brief) is here. A summary of the hearing compiled by @KostasMoros on Twitter can be found here. This lawsuit deals with CA law passed in 2016 that banned the mere possession of magazines capable of holding more than 10 rounds.
New Mexico: Tenth Circuit:
Donk v. Grisham Donk v. Grisham A hearing on the Temporary restraining order is set for Oct. 3 in Albuquerque.
Background: On Sept. 7, New Mexico Governor Michelle Lujan Grisham (D) declared a health emergency and on Sept. 8 she declared that it would now be illegal to carry a gun openly or concealed, including those citizens with valid permits, in any area where violent crime is above a certain percentage of the population, essentially banning firearms in Albuquerque and Bernalillo Counties.
The following lawsuits have been filed in the US District Court for the District of New Mexico. On Sept. 9, three lawsuits were filed: 1. NAGR v. Grisham,2. DONK v. Grisham, 3. We The Patriots USA, Inc. v. Grisham, and 4. Blas v. Grisham. On Sept. 11 a fifth lawsuit was filed: 5. Fort v. Grisham. On Sept. 14, New Mexico Republican legislators and the NRA filed a lawsuit,Ambdor v. Grisham, in the New Mexico Supreme Court.
The first lawsuit to be considered was Donk v. Grisham before Judge David H. Urias, who granted the plaintiffs’ motion for a Temporary Restraining Order. The TRO is in effect “until such time as the Court has ruled on the Plaintiffs motions for a preliminary injunction.” Additionally a hearing on that motion is set for Oct. 3, at US District Court for the District of New Mexico.
Washington: Ninth Circuit
Brumback v. Ferguson: This lawsuit was filed on July 14, in the US District Court for the Eastern District of Washington against the newly-enacted ban on “large capacity” magazines. Judge Mary K. Dimke has Denied the plaintiffs’ motion for a Preliminary Injunction. Her opinion appears to be dependent upon whether the plaintiffs have answered questions that under Heller and Bruen should have been asked of the government, not of the plaintiffs. Judge Dimke has scheduled a joint status report by Oct. 13.
New York: Although the state of New York lost NYSRPA v. Bruen in 2022 at SCOTUS, Reuters is now reporting that the New York judicial system is arguing about the cost of losing the lawsuit. “Chief U.S. District Judge Brenda Sannes in Syracuse said in Friday’s order that 22 of the firms’ 23 lawyers who worked on the case had submitted hourly rates that were out of step for her district and approved significantly lower amounts,” the story noted.
It seems that Judge Sannes did not appreciate that former Solicitor General Paul Clement, the leading litigator on Bruen at SCOTUS, was charging an hourly rate of $1,609.18 and reduced his rate to $675. She also charged that lawyers from the law firm of Cooper & Kirk needed a reduction because of “excessive” billing. It appears that even when plaintiffs beat the government, the government has the last laugh—they decide what they want to pay to lose.
