By Tanya Metaksa
What’s New— Second Amendment Foundation, Inc., Rainier Arms. v. BATFE: On Feb. 17 The Second Amendment Foundation and Rainier Arms filed an amended complaint against BATFE’s pistol brace rule; Mock v. Garland: On Feb. 21, 2023the plaintiffs filed a brief in support of their motion for a Preliminary Injunction (PI) or postponement of the effective date of the final rule; Britto v. BATFE: On Feb. 17 CMMG, Inc. added its own Motion for preliminary injunction; Sullivan v. Ferguson: the Court after seeking comment on hiring “experts on firearms law” has decided it does not need to do so at this time; MSI v. Hogan: oral argument to be held 8:30 am on March 10, 2023 in Courtroom 339; New York: US Court of Appeals for the Second Circuit announced that all 4 cases on appeal will be the subject of “expedited appeals” that “will be held in tandem on March 20, 2023.”
Lawsuits challenging Federal Agencies:
Pistol Brace Rule
Second Amendment Foundation, Inc., Rainier Arms. v. BATFE: On Feb. 17 The Second Amendment Foundation (SAF) and Rainier Arms filed an amended complaint against BATFE’s pistol brace rule. A press release by the SAF includes the following statement by SAF Executive Vice President Alan M. Gottlieb:
“Biden has weaponized the ATF and Justice Department, and we cannot allow that to go unchallenged. The government has set May 31 as the compliance date for this new arm brace rule, so we’re asking the court to act now, well in advance of that date, to prevent what amounts to a constitutional travesty.”
The initial filing was Jan. 15, 2021 in an effort to prevent BATFE from publishing a rule on pistol braces. Over the years the agency has had many differing explanations concerning the use of pistol braces with legally owned firearms. The Court stayed the litigation until a final rule was published. The final rule was published three weeks ago, on Jan. 31, and the Court lifted the stay on Feb. 17. On the same date the plaintiffs filed an amended complaint that accused the government of violating the Administrative Procedures Act, the Second Amendment and the Due Process Clause of the 14th Amendment. The case in being litigated in US District Court for the Northern District of Texas.
Mock v. Garland: On Feb. 21, the plaintiffs filed a brief in support of their motion for a Preliminary Injunction (PI) or postponement of the effective date of the final rule. On January 31 Firearms Policy Organization (FPC) filed a challenge against the ATF Pistol Brace Rulemaking on both Administrative Procedures and Second Amendment grounds.
Britto v. BATFE: On Feb. 17, CMMG, Inc. added its own Motion for preliminary injunction.
The Wisconsin Institute for Law & Liberty (WILL) filed this lawsuit in US District Court for the Northern District of Texas on Jan 31, 2023 challenging BATFE’s new rule on classifying pistols with stabilizing braces as “short barreled rifles”.
According to WILL Deputy Counsel, Dan Lennington, “These military veterans defended our country overseas, and now they are defending our rights here at home. WILL is proud to represent these patriots. The Biden Administration has no power to re-classify pistols as rifles, and we will vigorously defend the Second Amendment in federal court.”
Definition of Frame or Receiver
Morehouse Enterprises v. ATF: Judge Peter D. Welte not only denied the preliminary injunction sought against the “ATF from enforcing various parts of an omnibus rule scheduled to take effect Aug. 24”, but found the Plaintiffs’ motion for oral argument Moot. As a result the plaintiffs are seeking an interlocutory appeal of that order with the Court of Appeals and have requested that the proceedings before the District Court be stayed until the appeal is adjudicated. The ATF rule regulated unfinished, nonfunctioning firearm components identically to finished and operational firearms.This case has been joined by 17 states attorneys general.
Oregon Measure 114 lawsuits
Oregon lawsuits against the implementation of Measure 114: Four of the five lawsuits against Measure 114 have been consolidated by Judge Karen Immergut under Oregon Firearms Federation v. Kate Brown. The lawsuits being consolidated are Fritz v. Rosenblum, Eyre v. Rosenblum, initiated by the National Shooting Sports Foundation, and Azzopardi v. Rosenblum. On Feb. 6 the defendants responded to plaintiffs. The final case , Arnold v. Brown, initiated by Gun Owners of America in a state court with Judge Robert S. Raschio presiding. Raschio has issued a temporary restraining order (TRO) blocking Measure 114. The Oregon Supreme Court denied the state’s (defendants) request to throw out the TRO. On Jan. 3, Judge Raschio issued an opinion letter that did NOT remove the background check provisions from the TRO. At this moment the TRO stands until Raschio’s court determines the constitutionality of Measure 114.
Lawsuits challenging State Laws:
New Jersey: Third Circuit:
Koons v. Reynolds: Defendants have now file a brief in opposition to the Plaintiffs Motion for a prelininary injunction.On Monday, Jan. 30, Judge Renee Marie Bumb issued a Temporary Restraining Order“shall REMAIN IN EFFECT pending a hearing and ruling on Plaintiffs’ Motion for a Preliminary Injunction.”The injunction stops the ban on carrying guns in public parks, beaches and in casinos. This PI adds to the judge’s previous injunction against bans where alcohol is served, public libraries, museums, entertainment facilities, and private property without owner’s explicit consent. On Jan 24th the presiding officers of the New Jersey Senate and the General Assembly filed a motion to allow them to intervene. Judge Renee Marie Bumb on January 9 issued her first order in Koons v. Reynolds “the motion for a temporary restraining order will be GRANTED,”and wrote thatthe new law“essentially renders the entire state of New Jersey a ‘sensitive place’ where firearms are prohibited.” After the Judge Bumb’s ruling the ANJRPC requested to consolidate the Siegle v. Platkin caseand the Koons v. Reynolds cases. The Koons case is being supported by the Second Amendment Foundation, Firearms Policy Coalition and several other groups. The Siegel case is supported by the National Rifle Association (NRA) and the Association of New Jersey Rifle & Pistol Clubs, Inc.(ANJRPC).
NSSF v. Platkin:NSSF filed this lawsuit againstA1765. A1765, a bill that allowed lawsuits against members of the firearms’ industry in contravention of federal law, was signed by Gov. Phil Murphy after the Bruen decision. NSSF sought in November 2022 a Preliminary Injunction (PI) and on Jan. 31, 2023 Judge Zahid N. Quraishi granted the PI. On Feb. 2, the state of NJ filed a notice of Appeal to the US Court of Appeals for the Third Circuit.
New York: Second Circuit: the legislature went to great lengths to ensure that Bruen does not allow civilians the Right-to-Carry guns by passing the Concealed Carry Improvement Act (CCIA). Four cases listed belowwill be the subject of “expedited appeals” that “will be held in tandem on March 20, 2023”by the US Court of Appeals for the Second Circuit.Three of the cases are appeals from Judges Sinatra and Suddaby’s orders for restraining orders, stays and preliminary injunctions. The fourth case, Gazzola v. Hochul, is an appeal from Judge Sannes’ denial of a TRO or PI.
Antonyuk, et al v. Hochul: This lawsuit challenges “various provisions of New York’s newly minted and ineptly named “Concealed Carry Improvement Act (CCIA)”.Itwas filed on Sept. 20 and Judge Glenn T. Suddaby on November 6 issued a restraining order against major parts of the CCIA and denied the state’s request for a stay. The state of NY then appealed to the US Court of Appeals for the Second Circuit, requesting a stay and the stay was granted on Dec. 7. On Jan. 9 the plaintiffs filed their response to the Stay. In mid-January a group of 16 Democrat Attorney Generals filed an amicus curia for the State of NY.
Hardaway v. Nigrelli: AfterNY Judge John L. Sinatra, Jr. ruled on Oct. 10 that the section of NY’s new CCIA making it a felony to possess a firearm at “any place of worship or religious observation” was unconstitutional and he granted a preliminary injunction stopping the enforcement of this section of the CCIA.
Christian v. Nigrelli:, Although “A preliminary injunction, effective immediately from enforcing N.Y. Pen.L. § 265.01-d with respect to private property open to the public” was issued by Judge John L. Sinatra on Nov. 22, 2022, the U.S. Court of Appeals for the Second Circuit issued a stay on Dec. 12, 2022. This case challenges the enactment of S51001. Briefing schedule ordered ordered for US Court of Appeals for the Second Circuit: Dec. 13, 2022—Defendants (Nigrelli) opening brief due Jan. 22, 2023; Plaintiffs (Christian) opposition brief March 6, 2023, any reply brief by March 22, 2023.
Gazzola v. Hochul: This case filed on Nov. 1, 2022 challenges most parts of New York State gun laws enacted between May 30, 3033 and July 1, 2022. The lawsuit includes 125 complaints against these laws. On Dec. 7 Judge Brenda K. Sannes denied plaintiffs’ motion for a TRO or a Preliminary Injunction (PI) and subsequently plaintiffs appealed to the US Court of Appeals for the Second Circuit.
Other current New York cases in the Second Circuit: Another case that addresses guns in places of worship is Goldstein v. Hochul that was brought by a congregant and the Congregation of Bnei Matisyahu in Brooklyn, NY.
Corbett v. Hochul (7/1//2022), challenging the required disclosure of social media accounts. Motion for a preliminary injunction DENIED.
National Shooting Sports Foundation v. Letitia James: This case deals with the enactment of a NY law to hold the gun industry civilly liable for “public nuisances.” NSSF filed this case on December 16, 2021 and then in May 2022 Judge Mae D’Agostino ruled in favor of the defendant. NSSF has now appealed this ruling to the US Court of Appeals for the Second Circuit.
California: Ninth Circuit:
The spreadsheets depicting relevant gun laws from all parties have been submitted with plaintiffs responding negatively to those supplied by the state. On Feb. 7 Judge Roger T. Benitez, issued the following minute order regarding the four cases (Miller, Duncan, Rhode, Fouts v. Bonta), “The State defendants are directed to file a brief which identifies the best historical regulation that is a proper analogue and relevantly similar to a statewide background check for buying ammunition. The brief shall be limited to five pages and shall be filed with the brief currently due 30 days after the filing of the law list.”The 51-page document of historical case law is available.
Duncan v. Bonta: This lawsuit deals with CA law passed in 2016 that banned the mere possession of magazines with over ten rounds. On March 29, 2019 US District Court for the Southern District of California in Duncan v. Becerra ruled that “Magazines holding more than 10 rounds are ‘arms’ and “California Penal Code § 32310 is hereby declared to be unconstitutional in its entirety and shall be enjoined.” The case was then appealed to the US Court of Appeals for the Ninth Circuit that on November 30, 2021 overturned the District Court decision using a two-step framework. The Plaintiffs then appealed to the US Supreme Court (SCOTUS) for certiorari. On August 1, 2022 after the Bruen decision had been rendered SCOTUS granted certiorari, vacated and remanded for further consideration. On August 8, 2022 the US Court of Appeals for the Ninth Circuit requested briefs on whether the case should be remanded to the District Court. The case was remanded to the District Court and back to Judge Benitez.
Rhode v. Bonta: This case began in 2016 as Rhode v. Becerra. The plaintiff is Olympic Gold Medalist Kim Rhode. The issue is the 2016 California law passed by voters as Proposition 63. US District Judge Roger Benitez declared the ammunition background check requirement for purchases violates the Second Amendment. However, hours after that decision, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction and subsequently vacated and remanded the case back to the District Court for the Southern District of California to be revisited based on the Bruen case. All restrictions on purchasing ammunition in California that have been in effect for almost 5 years still remain.
Miller v. Bonta: The US Court of Appeals for the Ninth Circuit has REMANDED and VACATED this case back to the District Court and a hearing on the motion for a Preliminary injunction was held on Nov. 28, 2022. On Dec. 1 Judge Benitez issued a written order stating that the lawsuit is NOT MOOT and it will continue.
Other California cases:
Boland v. Bonta: CRPA lawsuit against the CA Handgun Safety Roster Law filed in August 2022. On January 23-24, 2023 a hearing was held by Judge Cormac J. Carney on plaintiffs’ motion for a PRELIMINARY INJUNCTION. Closing briefs are to be filed by Feb. 24 (no longer than 20 pages) and response briefs by March 10, 2023 (no longer than 10 pages.)
Hawaii: Ninth Circuit: Oral arguments were held on Feb. 14, 2023 for the two listed cases
Teter v. Shikada: On appeal from the US District Court for the District of Hawaii this case concerning HI ban of butterfly knives.
Yukutake v. Shikada: On appeal from the US District Court for the District of Hawaii this case concerning HI registration laws.
Illinois: Seventh Circuit
All these Illinois cases are filed challenging the newly passed Illinois Public Act 102-1116 (HB5471), the new IL gun control law.
Bailey v. Pritzker: This case was filed on January 23, 2023 in The Circuit Court Of The Second Judicial Circuit White County, Illinois. On February 2, 2023 Judge T. Scott Web ordered a Temporary Restraining Order against Public Act 102-1116.
Accuracy Firearms, LLC et al v. Pritzker: This case was filed on Jan. 17 in the Circuit Court Of The Fourth Judicial Circuit, Effingham County, Illinois by Thomas DeVore, a former candidate for Illinois Attorney General. On Jan. 20, Judge Joshua Morrison issued a temporary restraining order (TRO). However, this TRO only applies to the 860+/ plaintiffs not the entire county or the state of Illinois. The state of Illinois appealed Judge Morrison’s ruling to the 5th District Appellate Court. A three-judge panel upheld the TRO on the enforcement of the new law banning semiautomatic firearms and now it applies to the entire state, not just the 860+/ plaintiffs in Effingham County. Illinois AG Kwame Raoul states he will Appeal the ruling to the Illinois Supreme Court. FFL of IL v. Pritzker: A group of Illinois Federally Licensed Firearms dealers and several other plaintiffs including Gun Owners of America are suing Gov. Pritzker. This case was filed on Jan 24, 2023 in the US District Court for the Southern District of Illinois. Michel & Associations, the California firm, has also joined the lawsuit.
Langley v. Kelly: This case was filed in the Illinois Circuit Court system (state court) and on Jan. 23 it was moved to the US federal court system by the Office of the Attorney General. On Jan. 24 a motion for a Preliminary Injunction was filed in the US District Court for the Southern District of Illinois
Maryland: Fourth Circuit
Maryland Shall Issue v. Hogan: The current case, which is before the Fourth Circuit, deals with a Second Amendment challenge to the Handgun Qualification License (HQL). Oral argument to be held 8:30 am on March 10 in Courtroom 339. This case was originally brought by Maryland Shall Issue in 2016 after the Maryland legislature passed a law requiring a HQL. The suit alleges that the HQL requirements, both as set forth in the statute, and as implemented by the Maryland State Police, violate the Second Amendment of the Constitution by placing unjustifiable and overwhelming burdens on the right of law-abiding citizens to purchase a handgun for the home.
MSI v. Montgomery County: County ban on privately made firearms. The Court held a hearing on Plaintiff’s Motion for a TRO and PI and Defendant’s Motion to remand this case to the State Court.
Rhode Island: First Circuit
Ocean State Tactical v. Rhode Island: the plaintiffs have converted their request for a Temporary Restraining Motion to a Motion for a Temporary Injunction against the 10-round magazine law that recently passed the legislature.
Virginia: Fourth Circuit
Fraser v. ATF: This case concerning BATF’s regulation against those 18-21 years of age from purchasing firearms began in 2022 and on Jan. 25, 2023 Judge Robert E. Payne requested both plaintiffs and defendants to file “a table” detailing that would include “(1) the laws governing militias in each state in effect on June 8, 1789 and (2) any changes to state militia laws between January 1, 1784 and December 15, 1791.” These “tables” were due on Feb. 3 for the government and Feb. 10 for the plaintiffs.
Washington: Ninth Circuit
Sullivan v. Ferguson: This lawsuit was filed by the Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC) against the Washington state standard capacity magazine ban (bigger than 10 rounds) that became effective July 1, 2022. After Judge David G. Estudillo requested comments on whether expert witnesses should assist the court in the historical record on firearms laws, the court has decided that there is no need for expert witnesses.
