By Tanya Metaksa
What’s New—SCOTUS: Cargill v. BATFE: has been distributed for conference of 10/27/23; US v. Daniels: request for certiorari; VanDerStok v. Garland: SCOTUS grants the DOJ motion to vacate the preliminary injunction that was issued by the District Court and upheld by the US Court of Appeals for the Fifth Circuit; California—Ninth Circuit: Safari Club International v. Bonta: In an unpublished opinion filed on Sept. 22 the 3-judge panel of the US Court of Appeals for the Ninth Circuit REVERSED and REMANDED this case back to the Circuit Court; May v. Bonta: The schedule has been changed and this case is now coordinated with Carralero v. Bonta, another sensitive places case from FPC. The hearing is now scheduled for Dec. 20, 2023; Duncan v. Bonta: On October 13, 2023 CRPA sent out a press release saying that they were going to SCOTUS with an emergency petition to end the US Court of Appeals for the Eleventh Circuit’s en banc decision to say Judge Benitez’ decision to enjoin the enforcement of California’s magazine ban; Colorado: RMGO v. Polis (3-day waiting period 02563): Preliminary Injunction hearing rescheduled to 10-26-23; Maryland: Novotny v. Moore & Kipke v. Moore: On Sept. 29, Judge George L. Russell III ordered—Motions for Preliminary Injunction are GRANTED as to the claims to enjoin enforcement of Maryland’s laws restricting the carrying of firearms in: (1) locations selling alcohol; (2) private buildings or property without the owner’s consent; and within 1,000 feet of a public demonstration. In the October 13 joint status report; New Mexico: Donk v. Grisham:A status conference is set for Oct. 18 on Zoom before Magistrate Judge Laura Fashing; New York: Antonyuk v. Nigrelli: In a strange move Everytown for Gun Safety, an amicus in this case, has sent a F.R.A.P. 28(j) letter to Judges Jacobs, Lynch and Lee attempting to add 66 new historical restriction on firearms in parks; A consolidated case ANJRPC v. Platkin, Cheeseman v. Platkin, & Ellman v. Platkin filed briefs to exclude illegitimate expert witness testimony (a Daubert motion) and a motion for summary judgement on Oct. 6.
SCOTUS
Cargill v. BATFE 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. After 6 months of delay it was scheduled for conference of Sept. 26, but on Sept. 20 it was rescheduled for 10/6/2023. However, the lawsuit has now been rescheduled for Nov. 14. The case before SCOTUS has been distributed for conference of 10/27/23.
U.S. v Daniels: This is a case that impacts the federal government’s law under Section 922(g)(3) prohibiting users of marijuana from firearms’ possession. Patrick Darnell Daniels was charged with violating federal law and convicted of possessing guns while consuming marijuana. The US Court of Appeals for the Fifth Circuit found that this federal law did NOT pass the Bruen test of text, history and tradition. However Solicitor General Elizabeth Prelogar has requested that SCOTUS postpone their decision on this case until after they have ruled on Rahimi.
VanDerStok v. Garland: As a result of the second appeal to SCOTUS the DOJ was granted its motion to vacate the preliminary injunction in favor of Defense Distributed and BlackHawk Manufacturing on Oct. 16. In other words, the Final Rule will remain in effect for the duration of this lawsuit.
Background: This lawsuit against the BATFE’s new rule concerning the treatment of “receiver blanks, unfinished frames or receivers, or 80% frames or receivers” as firearms was filed in the United States District Court for the Northern District of Texas in August 2022. On June 30, Judge Reed O’Connor issued an order VACATING the final rule. The Department of Justice (DOJ) appealed to the US Court of Appeals for the Fifth Circuit, that on July 24 DENIED the DOJ motion to stay O’Connor’s Vacatur. The DOJ then appealed to SCOTUS for a STAY of the Fifth Circuit’s order. On Aug. 8 SCOTUS in a 5-4 vote issued a stay of Judge O’Connor’s “global” vacatur that applied to all entities nationwide.
The plaintiffs filed an emergency motion for a Preliminary Injunction against the Rule on August 9 and 14 in the District Court. Judge O’Connor issued an order granting injunctive relief for the plaintiffs on Sept. 14. The US Court of Appeals for the Fifth Circuit held oral arguments on Sept. 7 and on Oct. 2 issued another unpublished order that vacated the District Court order as to non-parties, but it denied the DOJ motion to stay the District Court’s injunction that was issued on Sept. 14. The DOJ on Oct. 5 appealed to SCOTUS to vacate the District Court’s September 14 injunction against the Rule as it applied to the original plaintiffs, Defense Distributed and BlackHawk Manufacturing.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Safari Club International (SCI) v. Bonta: In an unpublished opinion filed on September 22 the 3-judge panel of the US Court of Appeals for the Ninth Circuit REVERSED and REMANDED this case back to the Circuit Court. Attorney General Bonta has asked for an extension of time in order to file a petition for a rehearing en banc until 11/20/23.
Background: A lawsuit against AB2571 and its amendments. Judge Dale A. Drozd denied plaintiff’s motion for a preliminary injunction on Jan. 12.The lawsuit was then appealed to the US Court of Appeals for the Ninth Circuit.
May v. Bonta: The schedule has been changed and this case is now coordinated with Carralero v. Bonta, another sensitive places case from FPC. The hearing is now scheduled for Dec. 20.
Duncan v. Bonta: On Oct. 13, CRPA sent out a press release saying that they were going to SCOTUS with an emergency petition to end the US Court of Appeals for the Eleventh Circuit’s en banc decision to say Judge Benitez’ decision to enjoin the enforcement of California’s magazine ban.
Background: The 9th Circuit en banc on October 10 stayed Judge Benitez’ injunction against CA’s magazine ban while the state’s appeal continues, They began by writing, “First, we conclude that the Attorney General is likely to succeed on the merits.” Then they agreed with AG Bonta that “California indisputably will face an influx of large-capacity magazines like those used in mass shootings.” Four judges dissented.
Colorado: Tenth Circuit
RMGO v. Polis (3-day waiting period): Preliminary Injunction hearing rescheduled to 10-26-23.
Background: This is a challenge to HB1219 that instituted a three-day waiting period prior to a purchaser being able to take possession of a purchased firearm. This case was initiated on Oct. 1, the date the law went into effect. The Court already denied the plaintiff’s request for a Temporary Injunction.
Maryland: Fourth Circuit
Novotny v. Moore & Kipke v. Moore: On Sept. 29, Judge George L. Russell III made the following order: “Motions for Preliminary Injunction are GRANTED as to the claims to enjoin enforcement of Maryland’s laws restricting the carrying of firearms in: (1) locations selling alcohol; (2) private buildings or property without the owner’s consent; and within 1,000 feet of a public demonstration.”
In the Oct. 13 joint status report, Maryland does not plan to appeal the preliminary injunction, but it does NOT mean that the state won’t appeal any final decision.
Background: Before the ink had dried on Maryland Governor Wesley Moore’s signature on SB1, the Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Maryland Shall Issue (MSI) and three individuals filed a lawsuit challenging the constitutionality of the new Maryland law. SAF Executive Vice President Alan Gottlieb alleged, “Maryland lawmakers scrambled to make gun laws more restrictive than they were before. Indeed, the additional restrictions make it nearly impossible to legally carry firearms for personal protection, even on public land.” 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 was 70 pages long with 107 additional exhibits. This case appears to have quite a few twists and turns.
New Jersey: Third Circuit
New Jersey: Third Circuit
A consolidated case ANJRPC v. Platkin, Cheeseman v. Platkin, & Ellman v. Platkin filed briefs to exclude illegitimate expert witness testimony (a Daubert motion) and a motion for summary judgement on Oct. 6, 2023.
Background: SCOTUS has already vacated and remanded them in the aftermath of Bruen well over a year ago. The NJ judiciary has been slow walking these cases. ANJRPC deals with limits on magazine capacities when the other two are so-called “assault weapons” cases.
New Mexico: Tenth Circuit:
The following cases have been consolidated as of October 10, 2023: National Association For Gun Rights et al v. Grisham et al, No. 1:23-cv-00771; Donk et al v. Grisham, No. 1:23-cv-00772; We the Patriots USA Inc. et al v. Grisham et al, No. 1:23-cv-00773; Blas v. Grisham et al, No. 1:23-cv-00774; Fort et al v. Grisham et al, No. 1:23- cv-00778; and Anderson v. Grisham et al, No. 1:23-cv-00839. The case will be now known as
We the Patriots USA Inc. v. Grisham: On Oct. 6, as a result of Governor Grisham’s amended health order a motion for temporary restraining order and preliminary injunction was filed against the new health order. Judge Urias denied their Oct. 6 motion.
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. On Oct. 2 Governor Grisham amended the original order to just ban the carrying of firearms in parks and playgrounds.
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.
New York: Second Circuit
Antonyuk v. Nigrelli: In a strange move Everytown for Gun Safety, an amicus in this case, has sent a F.R.A.P. (Federal Rules of Appellate Procedure) 28(j) letter to Judges Jacobs, Lynch and Lee attempting to add 66 new historical restriction on firearms in parks. Why this is strange is that a “28(j)” letter is to inform a court about new events in similar legislation, not add pages to their brief. Secondly, The sender of a “28(j)” letter should be a litigant in the case, not an amicus. Second Amendment attorney Mark W. Smith covers this unusual event in this video.
Background: This lawsuit challenges “various provisions of New York’s newly minted and ineptly named “Concealed Carry Improvement Act (CCIA)”. It was filed on Sept. 20 and Judge Glenn T. Suddaby on Nov. 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay. It is currently awaiting a ruling by the 3-judge panel of the US Court of Appeals for the Second Circuit. The hearing was held on March 16, 2023.
Wyoming: Tenth Circuit
Wyoming Gun Owners v. Gray: This is an election case in which the Wyoming Secretary of State flagged a communication from the Wyoming Gun Owners WYGO as an electioneering communication. After paying the $500 fine, WYGO sued the state arguing that the law was vague, and the disclosure scheme was unconstitutional. The district court ruled in favor of WYGO. The case was appealed to the US Court of Appeals for the Tenth Circuit, which affirmed the District Court’s ruling, but reversed the District Court’s denial of fees.
