By Tanya Metaksa
What’s New— California—Ninth Circuit: Duncan v. Bonta; Attorney General Rob Bonta lost no time in appealing the the Ninth Circuit and filing a motion to stay Judge Roger Benitez’s order enjoining California’s ban on magazines holding more than 10 rounds; May v. Bonta: CRPA, GOA, SAF lawsuit against California SB2, sensitive places legislation; Fifth Circuit: VanDerStok v. Garland: On October 2 an unpublished order from Judges Willett, Engelhard and Oldham was issued; The Court allowed District Court’s temporary injunction for all the plaintiffs to stand; Mock v. Garland: On October 2, 2023 US District Court for the Northern District of Texas issued an Opinion and Order. The Court GRANTS the Motion for Preliminary Injunction and the Court ENJOINED the government from enforcing 27 C.F.R. §§ 478.11 and 479.11 against: Firearms Policy Coalition, Inc and all its members, Maxim Defense Industries (and all its customers), William T. Mock and his family, and Christopher Lewis and his family. Hawaii: Teeter v. Lopez: The state of Hawaii filed an en banc petition with the Ninth Circuit in this lawsuit challenging the butterfly knife ban; Maryland: Kipke v. Moore & Novotny v. Moore: Judge George L. Russell granted a preliminary injunction against the Maryland law restricting the carrying of firearms in locations selling alcohol, private buildings or property, and within 1000 feet of a public demonstration; New Mexico: Donk v. Grisham: A hearing on the Temporary restraining order is set for October 3, 2023 in Albuquerque; Aposhian v. Garland: Judge Jill N. Parrish granted the government summary judgement; Sullivan v. Ferguson: SAF and FPC filed a response brief on October 2, 2022 in U.S. District Court to the defendants’ motions for summary judgment; Georgia Supreme Court—Roberts v. Cuthpert: Carry permit applicant sues and wins his carry permit and is scheduled for a hearing to recoup legal costs;
Lawsuits challenging Federal Agencies:
Stabilizing Braces
Cases challenging 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. 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, 2023. And on Aug. 1 a preliminary injunction was issued by the US Court of Appeals for the Fifth Circuit
Texas: Fifth Circuit: Mock v. Garland: On Oct. 2, US District Court for the Northern District of Texas issued an Opinion and Order. The Court grants the Motion for Preliminary Injunction, and the Court enjoined the government from enforcing 27 C.F.R. §§ 478.11 and 479.11 against: Firearms Policy Coalition, Inc and all its members, Maxim Defense Industries (and all its customers), William T. Mock and his family, Christopher Lewis and his family. It is highly likely that similar cases against the ATF Rule filed by GOA and SAF will be requesting injunctions for their members.
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, 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 goes on to say that “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 September 1 the defendants, BATFE, filed a supplemental brief in opposition to the plaintiffs’ motion. On Sept. 8, the plaintiffs filed another supplemental reply brief. The Court then asked for briefs on the motion to vacate. Oral Arguments on Motion to Vacate the Injunction pending Appeal held on 9-28.
Cases challenging the Federal Bumpstock ban
Cargill v. Garland Case: 20-51016.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. After 6 months of delay it was scheduled for conference of Sept. 26, but on Sept. 20 it was rescheduled for 10/6/2023.There have been two prior bumpstock cases in which SCOTUS has denied certiorari:
Aposhian v. Garland (Tenth Circuit), which was denied SCOTUS cert on Oct. 3) On Sept. 29 Judge Jill N. Parrish denied the Plaintiffs motion for summary judgement and granted the government motions. Unless Aposhian appeals this case will be closed.
GOA v. Garland (Sixth Circuit)that was alsodenied cert by SCOTUS last year, the District Court has stayed this case waiting a decision in Cargill.
Lawsuits challenging Federal Agencies:
Definition of Frame or Receiver
VanDerStok v. Garland: On Oct. 2, US Court of Appeals for the Fifth Circuit issued an unpublished order that noted that the government was asking the Fifth Circuit to “vacate the district court’s injunction.” The Fifth Circuit agreed that the District Court’s nationwide injunction was too broad but DENIED the ATF’S request of a vacatur of the injunction against the plaintiffs. Preliminary injunctions in favor of all the plaintiffs remain in effect.
Background: Firearms Policy Coalition (FPC) filed a lawsuit on Aug. 11, 2022, 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. 2 Judge 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.
On March 2, Judge Reed O’Connor issued a preliminary injunction that granted Defense Distributed, a manufacture of gun parts, the right to keep manufacturing those parts, thus denying BATFE the right to enforce their new rule concerning what parts are considered a firearm receiver.
On June 30, 2023 Judge Reed O’Connor issued a Memorandum Opinion and Order VACATING the final rule.Two weeks later US DOJ appealed this Order to the US Court of Appeals for the Fifth Circuit. On July 24 US Court of Appeals for the Fifth Circuit issued an unpublished order that stated, “we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule.”
The US Department of Justice then appealed to the U.S. Supreme Court (SCOTUS) for a stay of the judgement from the US Court of Appeals for the Fifth Circuit. August 8 SCOTUS’ order read:
“The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari.”
On Sept. 7, the three judge panel of Willett, Engelhardt and Oldham of the US Court of Appeals for the Fifth Circuit heard oral arguments. On Sept. 14, the US District Court for the Northern District of Texas issued a motion and order for Defense Distributed and BlackHawk Manufacturing. The order states that BATFE “are ENJOINED from implementing and enforcing against Intervenor Plaintiffs Defense Distributed and BlackHawk Manufacturing … the provisions in27 C.F.R. §§ 478.11 and 478.12 that the Court has preliminarily and on the merits determined are unlawful.”This order allows these two corporations the ability to remain in business through the legal process. The following day Plaintiff Tactical Machining, LLC filed a similar motion seeking injunctive relief.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Duncan v. Bonta: On September 22, 2022 Judge Roger T. Benitez ordered an injunction against California’s ban on magazines that hold more than 10 rounds.
In a 71-page 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. It was a fire safety regulation.”
The Attorney General of California, 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. The Ninth Circuit, in a unusual decision, has taken the case back en banc (to the same panel that SCOTUS remanded it to after Bruen) rather than having a 3-judge panel hear the Emergency Motion.
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 begun in 2017 is a response to a CA law passed in 2016 that banned the mere possession of magazines with over ten rounds.
May v. Bonta: After the passage of SB2, a Bruen-response bill creating “sensitive places” where firearms are not allowed, this lawsuit was initiated on September 12, 2023. Plaintiffs include CRPA, GOA, SAF and others..
“In stark contrast to SB 2, Bruen recognized a general right to be armed in public places, subject only to limited, historically valid exceptions. In defiance of that holding, California has made the right a rare exception in most public places.”
On Sept. 28 Judge Cormac J. Carney issued an order with the following schedule: Plaintiffs’ memorandum to be filed by September 29, 2023, Defendants opposition by November 3, 2023, Plaintiffs reply by Nov. 30, with a court hearing scheduled for Dec. 4. The Plaintiffs’ brief has been filed.
Rhode v. Bonta:
Hawaii:Ninth Circuit
Teter v. Lopez: The state of Hawaii filed an en banc petition with the Ninth Circuit in this lawsuit challenging the butterfly knife ban.
Background: On appeal from the US District Court for the District of Hawaii this case challenges the HI ban of butterfly knives. Oral arguments were held on Feb. 14. On Aug. 7, US Court of Appeals for the Ninth Circuit issued the following opinion:
“In Hawaii, it is a misdemeanor knowingly to manufacture, sell, transfer, transport, or possess a butterfly knife no exceptions. Haw. Rev. Stat. § 134-53(a). Because the possession of butterfly knives is conduct protected by the plain text of the Second Amendment, and because Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms, we conclude that section 134-53(a) violates Plaintiffs’ Second Amendment rights. We reverse and remand.”
Maryland: Fourth Circuit
Novotny v. Moore & Kipke v. Moore: On Sept. 29, Judge George L. Russell ordered that a Preliminary Injunction requested by the plaintiffs was Granted in Part in locations selling alcohol, private buildings or property and within 1,000 feet of a public demonstration. All other motions for preliminary injunctions are denied. State’s motions to dismiss each case are denied. All have 14 days in which to appeal or object.
Background: On May 31 a motion to consolidate Novotny v. Moore and Kipke v. Moore was made by the defendants. On June 1 Judge George L. Russell, III DENIED the Motion to Consolidate. However, on June 9 the defendants, the state of Maryland, filed a memorandum in support of Defendants’ Motion to Consolidate. Then on June 28, the defendants filed a Motion to Dismiss that.
New Mexico: Tenth Circuit:
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 open or concealed including those with valid permit in any area where violent crime is above a certain percentage of the population, 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 September 9, 2023 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 the 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
Sullivan v. Ferguson: SAF and FPC filed a response brief on Oct. 2, 2022 in U.S. District Court to the defendants’ motions for summary judgment.
Background: This lawsuit was filed by the Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC) on Feb 3, against the Washington State standard capacity magazine law (banning magazines holding more than 10 rounds) that became effective July 1, 2022.
State Courts—Georgia
Roberts v. Cuthpert: The Supreme Court of Georgia on Sept. 19, supported the Georgia law “that permits a person who has been denied a weapons carry license by a probate judge to ‘bring an action in mandamus or other legal proceeding in order to obtain” such a license. If the person is successful, the law also states that he or she is entitled to recover the costs of such action. Thus Kevin Gary Roberts not only received his carry license but will be able to recover his legal costs.
