By Tanya Metaksa
HAPPY THANKSGIVING
What’s New—Oregon-Arnold v. Brown: Circuit Judge Robert Raschio declares and Ballot Measure 114 “facially unconstitutional.” The state will undoubtedly appeal. Illinois: Seventh Circuit—Barnet v. Raoul: SAF announced it has filed a motion for a rehearing en banc; Maryland: US Court of Appeals for the Fourth Circuit struck down Maryland’s handgun purchase permit law in Maryland Shall Issue v. Moore; Michigan—US Court of Appeals for the Sixth Circuit hears oral arguments in Oakland Tactical v. Howell Township: United States v. Erik Matthew Harris: AnotherSection 922(g)(3) case before the US Court of Appeals for the Third Circuit with oral arguments scheduled for Dec. 8, 2023; Maryland: Fourth Circuit: Willey & SAF v. Brown: This lawsuit was filed against the Maryland’s “red flag law.” The plaintiffs’ next response is due Dec. 8, 2023; Massachusetts: Second Circuit: White & SAF v. Cox: challenges substantial and untenable delays in the Boston Police Department’s processing of firearms licensing applications; Virginia: Fourth Circuit: Two cases, have been filed by victims of the Edmund Burke School shooting that occurred on April 22, 2023—Antonio Harris v. Daniel Defense, et al and Karen Lowy v. Daniel Defense, et al; Washington: Ninth Circuit: Sullivan v. Ferguson: challenging the Washington law banning large capacity magazines (LCMs). Judge David G. Estudillo has stayed the lawsuit pending the result of the Ninth Circuit case, Duncan v. Bonta; California—State Court: Campos v. Bonta: After three years the Appellate Court dismisses the delayof firearm transactions past the statutory ten day waiting period absent a legal basis as moot because it happened during COVID-19;
U. S. Courts of Appeals
Illinois: Seventh Circuit
Caleb Barnett v. Raoul: On Nov. 21, the Second Amendment Foundation announced it was filing an Appeal to the US Court of Appeals for the Seventh Circuit for a rehearing en banc of this coordinated case.
Background: Cases currently in the federal court system challenging the newly passed Illinois Public Act 102-1116 (HB5471):Accuracy Firearms, LLC et al v. Pritzker; Langley v. Kelly; Barnett v. Raoul and Harrel v. Raoul: Also see Caulkins v. Pritzker under State Court cases.
Background—Harrel v. Raoul: This case was filed on Jan. 17, by the Second Amendment Foundation, the Firearms Policy Coalition, Marengo Guns, Inc., C4 Gun Store and David Harrel against the large capacity magazine ban that was signed by Gov. J.B. Pritzker on that date. On Jan. 25 Plaintiffs filed a motion for a preliminary injunction (PI). After several motions for delays, all parties reached an agreement on a motion for a coordinated preliminary injunction briefing adding the following cases: Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly in US District Court for the Southern District of Illinois. On April 28, Judge Stephen Patrick McGlynn issued a preliminary injunction preventing enforcement of PICA. He wrote “PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them.” He enjoined enforcing PICA.
US Court of Appeals for the Seventh Circuit: Harrel v, Raoul, Federal Firearms Licenses of Illinois v. Pritzker, Caleb Barnet v. Raoul, and Langley v. Kelly: now known as Barnet v. Raoul: In a 2-1 (with Judges Easterbrook and Wood) in the majority, the US Court of Appeals for the Seventh Circuit vacated the District Judges Preliminary Injunction. Judge Brennan wrote a 44-page dissent.
Maryland: Fourth Circuit
US Court of Appeals for the Fourth Circuit in a 2-1 decision struck down Maryland’s handgun purchase permit law in Maryland Shall Issue v. Moore on Nov. 21, 2023. The decision stated:
“But, under the Second Amendment, mechanism matters. And Maryland has not pointed to any historical laws that operated by preemptively depriving all citizens of firearms to keep them out of dangerous hands. Plaintiffs’ challenge thus must succeed, and the district court’s contrary decision must be REVERSED.”
Governor Wes Moore’s comments on MSI v. Moore ruling:
“I am disappointed in the Fourth Circuit Court’s decision. This law is not about stripping away rights from responsible gun owners- it’s about every Marylander having the right to live free from fear.
Common-sense gun laws are critical to protecting all Marylanders from the gun violence that has terrorized our communities.
I am determined to do more than just give thoughts and prayers and attend funerals – and that’s why this law is vital to our administration’s commitment to keeping guns out of the wrong hands and saving lives.
Every Marylander has the right to feel safe in their own neighborhood – and I will continue to fight for this law. Our administration is currently looking at all options and reviewing the ruling.”
Michigan: Sixth Circuit
Oakland Tactical v. Howell Township: Oral argument was held on Sept. 8 before US Court of Appeals for the Sixth Circuit. During the oral argument the plaintiffs’ lawyer quoted the 2011 Ezell v. City of Chicago in the Seventh Circuit, a significant case dealing with firearms training. The Ezell case held that the core individual right of armed defense includes a corresponding right to acquire and maintain Proficiency in firearm use through target practice and the Ezell Court further stated that the city of Chicago had failed to establish that target practice is wholly unprotected as a matter of history and legal tradition in the founding era or when the 14th amendment was ratified.
Background: The lawsuit was filed in June 2019 by Oakland Tactical who desires to construct and maintain a shooting range facility on agricultural land within the township. The allegation was:
“Howell Township has prohibited the siting, construction, and operation of shooting ranges in the town through its zoning regulations by failing to provide or allow any designated areas within the town wherein the siting, construction, or operation of a shooting range would be permissible.”
On Sept. 10, 2020 Judge Bernard A. Friedman ruled“defendant violated none of plaintiffs’ Second Amendment rights by denying the requested zoning amendment at issue,” and granted the defendants motion to dismiss. The Plaintiffs appealed to US Court of Appeals for the Sixth Circuit in March 2021. On Aug. 5, 2022 the Sixth Circuit vacated and remanded under Bruen. Following the District Court’s granting of the Township’s motion to dismiss, the plaintiffs appealed again to the US Court of Appeals for the Sixth Circuit.
Pennsylvania: Third Circuit
United States v. Erik Matthew Harris: After the September 5 Court order for the parties to submit supplemental letter briefs both Harris and the DOJ both filed briefs on November 15, 2023. Oral argument is scheduled for December 8, 2023.
Background: This is anAppeal from a judgment entered in the United States District Court for the Western District of Pennsylvania finding Erik Matthew Harris guilty of violating Section 922(g)(3)’s prohibition on possession of a firearm by a person who is an unlawful user of a controlled substance, which was marijuana. Mr. Harris was not an addict, had never required treatment and there was no evidence he ever sold marijuana. His case before the Third Circuit was docketed on Nov. 2. 2021. On July 7, 2022 the government informed the Court of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. On July 22, 2022 Mr. Harris filed his response to the government’s post-Bruen brief saying that the DOJ had not satisfiedthe government’s significant burden to identify a “well-established and representative historical analogue.”
Federal Lawsuits challenging State Laws, ATF Rules, & Executive Orders
California: Ninth Circuit
May v. Bonta: On Nov. 21 CRPA Attorney Kostas Moros (@MorosKostas on X (formerly known as Twitter) informed his followers that a reply brief had been filed. He goes on to write“we’ve also submitted a rebuttal expert declaration which includes an appendix pointing out how California took several historical laws out of context, or otherwise mischaracterized them in their opposition brief.”
Background: After the passage of SB2, a Bruen-response bill creating “sensitive places” where firearms are not allowed, this lawsuit was initiated on Sept. 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 Sept. 29, Defendants opposition by Nov. 3, Plaintiffs reply by Nov. 30, with a court hearing scheduled for Dec. 4. The Plaintiffs’ brief has been filed.
Maryland: Fourth Circuit
Willey & SAF v. Brown: On Sept. 8, a motion for a preliminary injunction was filed by the plaintiffs. In late October a schedule for responses was issued. The plaintiffs’ next response is due Dec. 8.
Background: This lawsuit was filed Aug. 2 against the Maryland “red flag law” alleging that the law violates not only the Second Amendment to the U.S. Constitution, but also the Fourth Amendment.
Massachusetts: Second Circuit
White & SAF v. Cox: This lawsuit concerns substantial and untenable delays in the Boston Police Department’s processing of firearms licensing applications and was filed on Aug. 31. Plaintiffs allege that one of plaintiffs has waited 206 days with no interview yet scheduled.
Virginia: Fourth Circuit
The two cases listed below have been filed by victims of the Edmund Burke School shooting that occurred on April 22. Both plaintiffs are suing several firearms companies and 1-20 John Does. Additionally, the lawsuits share attorneys.
Antonio Harris v. Daniel Defense, et al: Antonio Harris, a retired D.C. police officer, worked as a security guard at Edmund Burke School in NW Washington, D.C. Harris was shot in the abdomen and required surgery to stop the bleeding. He is suing several firearms companies and 1-20 John Does. He filed this lawsuit on Nov. 11, and is seeking monetary damages and a jury trial.
Karen Lowy v. Daniel Defense, et al: Karen Lowy was waiting to pick up her daughter, N.T., from school and her car was “shredded” and she was injured. She has required surgeries and medical care since April 22, 2022. This lawsuit was filed on Oct. 1.
Washington: Ninth Circuit
Sullivan v. Ferguson: This case challenges the Washington state law banning large capacity magazines (LCMs). Judge David G. Estudillo has stayed the lawsuit pending the result of the Ninth Circuit case, Duncan v. Bonta, challenging California’s ban.
Background: This lawsuit was filed by the Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC) in Feb 3, 2023 against the Washington State standard capacity magazine law that became effective July 1, 2022.
State Courts
California:
Campos v. Bonta: was filed on Aug. 7, 2020 in the Superior Court of California, County of San Diego during the COVID-19 pandemic. Mauro Campos was challenging the Attorney General and the Bureau of Firearms over their delay of firearm transactions past the statutory ten day waiting period. Almost two years later, Aug. 3, 2022, Judge John S. Meyer entered judgement for Mauro Campos. The state of California appealed to the to the Fourth Appellate District Division I on Oct. 29, 2022. The case was argued on Nov. 15, and six days later the trial court’s judgement was reversed and the case was dismissed as moot.
Oregon:
Arnold v. Brown: On Nov. 21, Judge Robert S. Raschio ruled:
“Declaratory judgment is preventive justice, designed to relieve parties of uncertainty by adjudicating their rights and duties before wrongs have actually been committed. Hale v. State, 259 Or. App. 379, review denied 354 Or. 840 (2013). This court is preventing the undue burden of Ballot Measure 114 from being imposed on current, and prospective, gun owners who have a right to lawfully possess firearms for the purposes of defending themselves and the state against imminent threats of harm.
“Pursuant to ORS 28.010, et. al., the court, using its equitable power, DECLARES and ADJUDGES Ballot Measure 114 facially unconstitutional in all of its applications under Oregon Constitution, Article I, § 27. The court makes this declaration to settle and to afford relief from uncertainty and insecurity with respect to the right to bear arms in Oregon. ORS 28.120. Ballot Measure 114 is permanently enjoined from implementation.
“The court orders costs upon a filing under ORCP 69 that are just and equitable for the plaintiffs. ORS 28.100.
