The US Supreme Court declined to issue an injunction against the new Illinois AWB and magazine ban while the cases make their way through the courts.

The application for a writ of injunction pending appeal
presented to Justice Barrett and by her referred to the Court is

While Judge Stephen McGlynn of the Southern District of Illinois had issued a preliminary injunction, the state of Illinois immediately appealed to the 7th Circuit Court of Appeals asking for a stay of his injunction. Normally, the judge who had issued the injunction is given the opportunity to study whether a stay is warranted when the losing party appeals. This was not done in this case as noted by attorneys for the plaintiffs in their responses opposing the motion to stay. Unfortunately, Judge Frank Easterbrook of the 7th Circuit did grant their stay meaning the law remains in effect. His order was then confirmed by a panel of three judges (including himself) from the 7th Circuit.

In the NAGR case filed in the Northern District of Illinois, Judge Virginia Kendall had denied their request for a preliminary motion and their request for a motion to stay while they appealed. Attorneys for NAGR had appealed and the plaintiffs in the other cases from the Southern District had filed amicus briefs in support of their appeal.

I am thinking that the Supreme Court did not want to intervene until such time as decisions were final in the lower courts and the cases had been fully briefed and argued. In the meantime, the plaintiffs in the cases from the Southern District where an injunction had been issued could request an en banc hearing of the stay. According to the Washington Post, hearings are scheduled for next month on these cases.

Chief Judge Says No To Illinois

Chief Judge Nancy Rosenstengel of the Southern District of Illinois just said “no” today to the attempt at judge shopping by the State of Illinois. She transferred both Langley v. Kelly and FFL-IL v. Pritzker to Judge Stephen McGlynn. Judge McGlynn is the judge of record in Harrel v. Raoul.


In addition, the magistrate to whom Barnett v. Raoul had been assigned ordered that case transferred to Judge McGlynn.

I had posted about the attempt by the State of Illinois to game the system earlier today. They had first pulled a state court case to Federal court and then tried to have it be the lead case. Their argument was that it was the first case filed anywhere. However, precedent in the district stated that consolidated cases should be assigned to the judge of the case with the lowest number. Here that would have been the joint SAF, FPC, and ISRA case of Harrel v. Raoul.

I applaud the Chief Judge for abiding by the longstanding precedent in the District for assignments in consolidated cases.

Legal Gamesmanship In Illinois AWB Cases

While I was in Las Vegas at the SHOT Show, I listened to Alan Gottlieb of the Second Amendment Foundation discuss some of their 43 pending cases. He went into particular detail about the SAF and co-plaintiffs’ challenge to the recently passed assault weapon (sic) and magazine bans in Illinois. What was particularly interesting was the decision on which district of Illinois to file the case, Harrel et al v. Raoul et al, and the goal of being the first case filed challenging the new law. Alan said the Southern District of Illinois tended to be better which is why it was filed there. He also noted that if, as he expected, the cases would end up being consolidated the lead case would be Harrel v. Raoul as it was the lowest numbered case. Finally, he said that by the luck of the draw that the judge assigned to the case, Judge Stephen McGlynn, was appointed to the court by President Trump.

Since Harrel was filed on January 17th, two other cases were filed challenging the new Illinois ban. Furthermore, another case was moved from state court to Federal court at the request of the State of Illinois.

Barnett et al v. Raoul et al was filed on January 24th. The lead counsel is Paul Clement and the plaintiffs include the National Shooting Sports Foundation. This case is also being financially supported by the NRA according a post on ILA’s website. Filed the same day was Federal Firearm Licensees of Illinois et al v. Pritzker et al. The lead attorney in this case is California gun rights attorney Chuck Michel. Plaintiffs include GOA, Guns Save Lives, and Gun Owners Foundation as well as other individual and business plaintiffs.

Langley et al v. Kelly et al was originally filed in Circuit Court of the Second Judicial Circuit, Crawford County, Illinois. Kelly, the Director of the Illinois State Police, moved to have the case transferred from state court to the US District Court for the Southern District of Illinois. This removal was granted on January 23rd. Note however, that it has a higher case number than Harrel. This case as well as Barnett and FFL-IL were all originally assigned to Senior Judge J. Phil Gilbert who subsequently recused himself. Langley and FFL-IL has now been reassigned to Chief Judge Nancy Rosenstengel. She was appointed to the bench by President Obama. The Barnett case has, for the time being, been referred to a magistrate judge.

Under Rule 42(a)(2) of the Federal Rules of Civil Procedure the court can consolidate the cases if they involve a common question of law or fact. Given all four cases are challenging the same law, I think there would be grounds to do so.

Here is where it gets interesting and you start to see the legal gamesmanship. The State of Illinois through its filings in Langley is pushing to have the cases all consolidated under it as Chief Judge Rosenstengel, an Obama appointee, would be the judge hearing the case. The presumption is that an Obama appointee would be more favorable than a Trump appointee such as Judge McGlynn. Mind you, judge shopping is frowned upon.

From the state’s motion filed on January 26th:

This Court typically consolidates cases into the lower-numbered case, which is typically the earlier-filed case. In this instance, however, the present case was initiated in state court on January 13, 2023—before Harrel, Federal Firearms Licensees of Illinois, and Barnett were filed on January 17, 24, and 24, respectively—and removed on January 23. In comparable circumstances involving removed cases, this Court has consolidated into the higher-numbered case. See Spurgeon v. Pac. Life Ins. Co., 2007 U.S. Dist. LEXIS 106366, *4 (S.D. Ill. Feb. 6, 2007) (consolidating into the higher-numbered case because lower-numbered case may have been removed prematurely). Because this case was the first-filed in any forum, state or federal, Defendant Brendan Kelly respectfully requests that Harrel, Federal Firearms Licensees of Illinois,
and Barnett be consolidated here.

Thomas Maag, attorney for the plaintiffs in Langley, responded on January 27th. He first said:

The Defendant Kelly, who in the experience of undersigned counsel, rarely actually removes cases to federal court, due to the perceived fear of the state that doing so may waive sovereign immunity, did, in fact, remove this case to federal court, obviously thinking this Court a more favorable forum that its own state courts. That is Defendant Kelly’s right, but it is interesting.

Maag goes on to add that the longstanding precedent in the Southern District going back to the time it was part of the Eastern District of Illinois is, with few exceptions, to consolidate in the lowest numbered case which would be Harrel. He notes that the more substantive reason for doing this is to avoid judge shopping. I think a strong argument could be made that this is indeed what the State of Illinois is seeking to do.

He concludes that the plaintiffs in Langley are not taking a position on whether or not to consolidate. However, if consolidation were to occur, it should be “into the lower case number of file in this Court, which is 23-cv-141-SPM” which is the Harrel case.

To conclude, it seems obvious that the State of Illinois is is trying to game the system to get a more favorable judge. While the attorneys in Harrel, Barnett, and FFL-IL have not filed motions objecting to the Illinois motion, it would be my considered guess that they would prefer it be lowest numbered case (Harrel) with the original judge assigned to that case (McGlynn).

UPDATE: See my later post where Chief Judge Nancy Rosenstengel transferred this case and FFL-IL to Judge McGlynn.