By Tanya Metaksa
What’s New—SCOTUS: USA v. Rahimi: the case was argued on Nov. 7; Two more cases will be considered Garland v. Cargill, and NRA v. Vullo: California: Carralero v. Bonta: On Sept. 9, FPC filed this lawsuit against SB2; Colorado: Tenth Circuit—United States v. Harrison arguments scheduled for January 2024 at US Court of Appeals for the Tenth Circuit in Denver, CO; Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly: now known as Langley v. Kelley: In a 2-1 (with Judges Easterbrook and Wood) ruling the US Court of Appeals for the Seventh Circuit vacated the District Judges Preliminary Injunction. Judge Brennan wrote a 44 page dissent. New Mexico: Tenth Circuit—We The Patriots USA Inc. v. Grisham: On Nov. 6, the Plaintiffs appealed to US Court of Appeals for the Tenth Circuit seeking a Preliminary Injunction after Gov. Grisham extended the health emergency for another 30 days.
Supreme Court of the United States
As we wrote last week these cases were distributed on October 27, and on November 3 SCOTUS announced that they would take up 2 cases: thebump stock cases Garland v. Cargill, and NRA v. Vullo (NY bank/insurance)
Cargill v. BATFE Case: 22-976. This 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 plaintiff Michael Cargill appealed to the US Court of Appeals for the Fifth Circuit, which decided on March 6, 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.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 six months of delay it was scheduled for conference of Sept. 26, but on Sept. 20 it was rescheduled for 10/6/2023. The Case before SCOTUS was distributed for conference of 10/27/23.
NRA v. Vullo: Case: 22-842SCOTUS has granted certiorari on the following question: “Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?”
Seven amicus briefs representing 40 individuals and organization, including the ACLU, were filed in support. One of the briefs in opposition to the granting of certiorari by SCOTUS was filed by Marie T. Vullo.
Background: NRA v. Vullo isa first amendment claim against New York’s Department of Financial Services (DFS). In 2010, Andrew Cuomo was elected Governor of New York. His brand of politics included a dislike for the Second Amendment and when he was NY Attorney General he appointed Maria Vullo, as Deputy Attorney General in his office. Then as Governor he appoint Vullo as Superintendent of NYS Department of Financial Services (DFS) in 2016.
In October 2017 she opened an investigation into the NRA supported insurance program called “Carry Guard.” Shortly after her initial inquiries the three insurance companies that underwrote or administered Carry Guard signed an agreement to stop providing this product. Carry Guard was effectively dead. Vullo should have been satisfied with her victory.
Yet, after the Parkland High School Shootings in Florida, Cuomo and Vullo attacked the NRA again. In April 2018 Gov. Cuomo issued a press release with the headline, “Governor Cuomo Directs Department Of Financial Services To Urge Companies To Weigh Reputational Risk Of Business Ties To The NRA And Similar Organizations”that quoted Vullo as saying “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.”Vullo then issued a “Guidance letter” castigating the NRA and suggesting that insurance companies might face consequences doing business with the NRA. After the issuance of the “Guidance letter” Vullo signed consent agreements with the targeted insurance companies agreeing not to do business with the NRA and paying fines that in total exceeded $13 million.
On May 11, 2018 the NRA filed its original lawsuit against both Cuomo and Vullo seeking a jury trial and damages. U.S. District Judge Thomas J. McAvoy upheld the NRA’s First Amendment Claim on Nov. 6, 2018. After motions on both sides on March 15, 2021 Judge McAvoy ruled in favor of NRA. The state of New York then filed an appeal to the US Court of Appeals for the Second Circuit that struck down Judge McAvoy’s order. On February 7, 2023 NRA sought certiorari with SCOTUS.
United States v. Zackey Rahimi: The DOJ filed its reply brief on October 25 and the case was argued on Tuesday. Attorney Kostas Moros @KostasMoros on X (formerly Twitter) was tweeting a live thread on Tuesday which if you follow him can view on X. His conclusion can be found here.
Background: Zack Rahimi 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 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 therefore he was not prohibited from owning firearms. The case was appealed to the US Court of Appeals for the Fifth Circuit that ruled on Feb. 2, 18 U.S.C,§ 922(g)(8) is not constitutional under the Second Amendment. Attorney General Merrick Garland filed an appeal to SCOTUS. SCOTUS announced that it would grant certiorari on June 30. There have been more than 60 amicus briefs filed in this case.
Federal Lawsuits challenging State Laws & Executive Orders
California: Ninth Circuit
Carralero v. Bonta: On Sept. 9, FPC filed this lawsuit against SB2, California’s restrictions on where the carry of firearms by licensed, law-abiding Californians is banned and moved for a Preliminary Injunction. On Nov. 3, California filed its opposition to a Preliminary Injunction.
Illinois: Seventh Circuit
Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly: now known as Langley v. Kelley: In a 2-1 (with Judges Easterbrook and Wood) ruling the US Court of Appeals for the Seventh Circuit vacated the District Judges Preliminary Injunction. Judge Brennan wrote a 44-page dissent.
Background: This lawsuit began as a complaint against the new Illinois gun law. Judge Kendall of the United States District Court for the Northern District of Illinois eastern division denied the plaintiffs motion for a preliminary injunction. On May 1 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 state of Illinois appealed to Seventh Circuit.
Louisiana: Fifth Circuit
Reese v. ATF: US Court of Appeals for the Fifth Circuit heard oral argument Tuesday (Nov. 7) in this case.
Background: This is a case filed by FPC, NRA and SAF challenging the ban on licensed handgun sales to law-abiding 18-to-20 year olds that was decided in favor of the ATF on December 21, 2022. The Plaintiffs appealed to the Court of Appeals for the Fifth Circuit on March 31, and have requested oral argument before the Court. A brief for the appellees (FPC, NRA and SAF) was filed on May 12.
New Mexico: Tenth Circuit
We The Patriots USA Inc. v. Grisham: On Nov. 6, the Plaintiffs appealed to US Court of Appeals for the Tenth Circuit seeking a Preliminary Injunction after Gov. Grisham extended the health emergency for another 30 days. The following cases have been consolidated as of Oct. 10: 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 Plaintiffs have filed a Notice of Appeal to the US Court of Appeals for the Tenth Circuit on Oct. 20.
Background: On September 7, 2023 New Mexico Governor Michelle Lujan Grisham (D) declared a health emergency and on September 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 October 2 Governor Grisham amended the original order to just ban the carrying of firearms in parks and playgrounds. On October 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 October 6th motion.
Colorado: Tenth Circuit
United States v. Harrison This matter is set for IN PERSON oral argument on 1/18/2024 at 8:30 A.M. Mountain Time in Courtroom III of the Byron White United States Courthouse, Denver, CO.
Background: On Aug. 17, 2022, a federal grand jury in the Western District of Oklahoma charged Jared Michael Harrison with knowingly possessing a firearm while an unlawful user of marijuana. On February 3, 2023, in a final order, the district court granted Mr. Harrison’s motion to dismiss the indictment, finding that 18 U.S.C.§ 922(g)(3) violates the Second Amendment. The U.S. government has appealed to the US Court of Appeals for the Tenth Circuit.
