By Tanya Metaksa
What’s New—SCOTUS-National Association for Gun Rights v. Naperville: In this case challenging the 2023 Illinois ban on “assault weapons”, the plaintiffs submitted an application for a writ on injunction to SCOTUS Justice Amy Comey Barrett; California: May v. Bonta: On Dec. 20, the hearing on this case challenging SB2 will be held; California: CRPA v. LASD: CRPA, SAF, GOA and individuals are suing Los Angeles Sheriff Department for their unconstitutional laws and processes covering the issuance of carry permits; West Virginia: Brown v. ATF: Judge Thomas S. Kleeh of the US District Court for the Northern District of West Virginia ruled that 18-20 year olds can purchase firearms and enjoined ATF from enforcing 18 U.S.C. §§ 922(b)(1) and (c)(1) against Plaintiffs and otherwise-qualified 18-to-20-year-olds and the government quickly appealed; Colorado: RMGO v. Polis: a preliminary injunction is in effect pending disposition of the case on the merits; Kiloton Tactical v. ATF: After denying to renew the FFL, ATF has held a hearing and renewed Kiloton’s license; Illinois: Caulkins v. Pritzker: Caulkins has appealed to SCOTUS for a writ of certiorari and has added additional information on Dec. 4.
SCOTUS
Illinois: Bevis & National Association for Gun Rights v. Naperville:On Nov. 27, NAGR applied for a writ of injunction to Justice Amy Coney Barrett, to which she replied by issuing an order that directed the defendants in this case, including the state of Illinois, to submit an argument or a brief explaining why an injunction should not be entered that would shut down Illinois’s assault weapon ban law by Dec. 6. On Nov. 21 the plaintiffs filed a Motion For Injunction Pending Review, which was denied by a three-judge panel of the Seventh Circuit on Nov. 22.
Background: Plaintiffs filed their action challenging the Illinois law on Nov. 18, 2022. Judge Kendall of the United States District Court for the Northern District of Illinois Eastern Division denied the plaintiffs’ motion for the preliminary injunction. 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. Judge Stephen Patrick McGlynn on April 28issued a temporary injunction against the new Illinois gun ban law, but on May 5, Appellate Judge Frank Easterbrook of the U.S. 7th Circuit Court of Appeals blocked the temporary injunction. Interestingly Judge Easterbrook was the judge who also issued an opinion in McDonald V. Chicago that was overturned by SCOTUS.
The original plaintiffs then made an emergency appeal to the US Supreme Court Justice Amy Coney Barrett, who is the Justice responding to appeals for the Seventh Circuit. The question that was asked of SCOTUS in this appeal was “Can the government ban the sales, purchase and possession of certain semi-automatic firearms and firearms magazines, tens of million of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by D.C. v. Heller and NYSRPA v. Bruen?”Justice Barrett’s response to this application was to direct the defendants to answer why these laws do not violate the Second Amendment by noon on May 8. In this case the law firm of Clement & Murphy filed a brief in response to Justice Barrett’s query arguing that AR-15s and their magazines are protected under the Second Amendment. That section of their brief can be found here,On May 17 the application was denied.
US Court of Appeals for the Seventh Circuit on Nov. 3, issued the following order that applied to this case (23-1353) plus Herrera v. Raoul (23-1793), and Barnett v. Raoul—(23-1825) vacating the injunctions and affirming the decisions in Herrera and Barnett
“Using the tools of history and tradition to which the Supreme Court directed us in Heller and Bruen, we conclude that the state and the affected subdivisions have a strong likelihood of success in the pending litigation. We therefore affirm the decisions of the district courts in appeals No. 23-1353 and 23-1793 refusing to enjoin these laws, and we vacate the injunction issued by the district court in appeals No. 23-1825, 23-1826, 23-1827, and 23-1828.”
Courts of Appeal
Florida: Eleventh Circuit: Kiloton Tactical v. ATF: Sometimes it pays to go to court! On November 30, 2023 ATF informed the Court that:
“After review of the evidence introduced at the hearing, on Nov. 28, 2023 the Director of Industry Operations for the Tampa Field Division determined not to issue a final notice of denial to Kiloton, and this decision is attached hereto. ATF sent Kiloton a written notification of this decision on Nov. 29. In addition, Kiloton’s license was renewed and is active until July 1, 2026.”
Background: Using the BiPartisan Safer Communities Act of 2022 as a mandate, BATFE on August 31, 2023 issued a press release and a proposed rule, docket number ATF 2022R-17. According to the press release the proposed rule would require anyone who sells firearms online, at gun shows or anywhere, even from a private collection, to obtain an FFL. Public comments may be made by mail or submitted to Federal eRulemaking Portal: www.regulations.gov. As a result of BATFE’s announcements prior to proposing the rule Kiloton was filed on August 29, 2023. Bringing the action to preserve the current status quo against the Department of Justice’s “zero tolerance” policy. Kiloton Tactical was sent a Notice to Deny Application for a Renewal License as a federally licensed firearms dealer on July 10.
District Courts
California: CRPA, et al. v. LA County Sheriff’s Department: On Dec. 4, CRPA, the Second Amendment Foundation, Gun Owners of America, Gun Owners of California and seven individuals sued the Los Angeles County Sheriff’s Department (LASD) seeking Declaratory and Injunctive Relief. They are challenging the constitutionality of the LA County policies and law primarily 1.) the lack of timely process for adjudicating carry permit, 2.) grossly excessive fees, 3.) use of highly subjective suitability criteria, and 4.) refusal to honor permits issued by other states.
In the lawsuit the plaintiffs specifically point to the fact that LASD “admits that it takes ‘a year to a year and a half’ to process CCW applications. The also note that the LaVerne Police Department (LVPD) has a “cost prohibitive” fee structure, costing the applicant $900 to $1,000 depending on the varying costs of training and other required service. They even point out that the cost for psychological exams, if required, was capped at $150, but since the passage of SB2, the applicant needs to pay the full cost.
Finally, they address the problem that the residents of the other 49 states, who choose to visit California, must be unarmed and defenseless.
“Accordingly,” the complaint asserts, “California’s policy of denying out-of-state residents the ability to lawfully exercise their constitutionally protected right to be armed in public for self-defense inhibits the free interstate passage of citizens and violates equal protection doctrines by treating Americans differently merely on account of their state of residency.”
California: May v. Bonta: As we mentioned several weeks ago, the Hearing is scheduled for Dec. 20, 2023. One of the attorneys stated they hope to have an injunction before them.
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. 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 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.”
A Video about this lawsuit can be found here. And the Notice of Assignment goes to Judge Sherilyn Peace Garnett, who was appointed by Joe Biden in 2022.
West Virginia: Brown v. ATF: On Dec. 1, Judge Thomas S. Kleeh of the US District Court for the Northern District of West Virginia ruled: “Defendants are Enjoined from enforcing 18 U.S.C. §§ 922(b)(1) and (c)(1) against Plaintiffs and otherwise-qualified 18-to-20-year-olds.”
Background: On Aug. 30, 2022 plaintiff Steven Robert Brown filed this complaint against BATFE for denying him the right to purchase a firearm. On Sept. 27, 2022 he filed an Amended Complaint For Declaratory Judgment And Injunctive Relief against All Defendants.
In a similar case in Colorado—RMGO v. Polis (Case# 1:23-cv-01077-PAB-NRN), plaintiffs aged 18-29 years of age, filed a complaint against Colorado Governor Polis on April 28, 2023 in US District Court for the District of Colorado. On Aug. 7, Chief United States District Judge Philip Brimmer ordered:
ORDERED that the portion of plaintiffs’ Motion for Preliminary Injunction [Docket
No. 12] brought on behalf of plaintiffs Tate Mosgrove and Adrian S. Pineda is GRANTED. It is further
ORDERED that the defendant and his officers, agents, servants, employees, and all persons in concert or participation with them who receive notice of this preliminary injunction are enjoined, effective immediately, from enforcing SB23-169. It is further
ORDERED that this preliminary injunction shall remain in effect pending disposition of the case on the merits.
On Aug. 21, Gov. Jared Polis appealed to the US Court of Appeals for the Tenth Circuit requesting a stay pending appeal, which was denied by the Circuit Court on Aug. 29, 2023.
State Courts
Illinois: Caulkins v. Pritzker: The Supreme Court of Illinois ruled“the judgment of the circuit court of Macon County is reversed”on August 11, 2023. The Plaintiffs then appealed to SCOTUS for a writ of certiorari on Nov. 8, that was docketed on Nov. 14. On Dec. 1 Gov Pritzker’s office waived the right of response. On Dec. 4 the plaintiffs filed a supplemental brief discussing the political expenditures for the election of two Illinois Supreme Court candidates who did not recuse themselves from this case.
“Newly discovered material (by Caulkins) discloses Seven Million Three Hundred Thousand Dollars additional (to the $2.6 Million direct financial contributions in the original Petition) indirect campaign expenditures supporting the candidacies of Justices Rochford and O’Brien by a political committee backed by Defendant, Illinois Senate President Don Harmon. Supp. App. 1-18. The sole officer of the political committee, All for Justice, is Luke Casson, counsel of record for Defendant Harmon in the proceedings below in this case. The expenditures for the benefit of Justices Rochford and O’Brien were concealed from the public until several months after the election…On Nov. 21, All for Justice was fined $99,500 for violating campaign disclose laws with the delayed public disclosure of the expenditures supporting Justices Rochford and O’Brien.”
Governor Pritzker has until Dec. 14, 2021 when his response is due to answer these new allegations.
Background: Macon County, IL a group of law-abiding gun owners led by Dan Caulkins sued Gov. Pritzker in the Sixth Judicial Circuit of Macon County, IL. After the passage of Gov. Pritzker’s omnibus gun bill, Public Act 102-1116, on Jan. 17, a group of citizens in Macon County, IL requested a hearing on a restraining order against the new law. Additionally another group of citizens in Effingham County filed a similar motion on the same day. Judge Joshua Morrison held a hearing on January 18 and both plaintiffs and defendants then filed motions concerning the passage of Public Act 102-1116. On Feb 2 Judge Morrison issued his temporary restraining order against the State of Illinois from “enforcing or attempting to enforce any and all provisions of Public Act 102-111.” Now the state of Illinois is appealing to the Supreme Court of Illinois and have asked for a schedule that included holding oral arguments during the second week of May.
