preliminary injunction

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NRA’s Attempt To Intervene Denied

June 30, 2023 by

The NRA sought to intervene in the Second Amendment Foundation’s case entitled Second Amendment Foundation et al v. BATFE. (corrected case title) This is a case challenging the Biden pistol-brace ban. As with Mock v. Garland, the plaintiffs including all members of the Second Amendment Foundation were covered by the injunction against the enforcement of the pistol-brace ban while the 5th Circuit Court of Appeals is taking up the issue. When the NRA sought to intervene, the Second Amendment Foundation did not oppose this motion but it was opposed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

At this point, I think it is important to note that the brief and motion of the NRA seeking intervenor status in this case was signed by William Brewer III as the attorney of record. At the time the NRA filed to intervene, I found it more than surprising as Brewer has little to no expertise in Second Amendment law.

Today in a 12 page Memorandum Opinion and Order, US District Court Judge Jane Boyle denied the NRA’s motion for intervenor status. The net result is that NRA members are not covered by the injunction against enforcement of the pistol-brace ban.

The Federal Rules of Civil Procedure allow intervention by another party in two ways. One is by right and the second is by permission of the judge if he or she finds it warranted.

An intervention by right must be timely. That is a threshold requirement which must be met. Judge Boyle found the NRA’s motion was not timely. After reviewing some of the history of this case which began long before the pistol-brace ban was even finalized, she concluded:

On those facts alone, it is hard to conclude that the NRA’s Motion to Intervene is timely. But the unusual circumstances of this case further militate against such a finding. Specifically, despite knowing of the Rule and Plaintiffs’ limited injunction request, the NRA only sought to intervene once this Court granted Plaintiffs’ motion for preliminary injunction pending the Fifth Circuit appeal in Mock. To find intervention timely under these circumstances would seemingly incentivize “injunction shopping” among putative intervenors seeking to challenge agency actions.

Judge Boyle goes on to add that the NRA knew of the BATFE’s proposed rule for more than a year before it moved to intervene. She then goes on to say that the interests of the NRA members will be adequately represented by the plaintiffs in this case.

In terms of the case for a permissive intervention, Judge Boyle found the same considerations that prevented intervention by right also applied here. Namely that the NRA’s interests are adequately represented by the existing plaintiffs. She notes that any ruling to the contrary would create a “perverse” precedent for potential intervenors to go case shopping for cases where a preliminary injunction had already been granted. Accordingly, she denied the NRA’s motion to intervene on both by right and by permission.

Given this ruling, the NRA will need to hope for success in their case in North Dakota which they are backing. That case, Firearms Regulatory Accountability Coalition v. Garland, does not seem to have any injunctions issued as of now.

Chalk up this denial as another loss in court by Bill Brewer while representing the NRA and taking as much of the member’s money as possible.

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Injunction Sought In California “Assault Weapon” Registration Lawsuit

August 15, 2018 by

As I reported about a month ago, a coalition of California gun rights groups, the SAF, and individual plaintiffs sued Attorney General Xavier Becerra (D-CA) and the California DOJ over their computer system failures which made timely registration of “assault weapons” impossible. This coalition has now added four more plaintiffs in an amended complaint and is moving for a preliminary injunction.

More details are in the release sent out this afternoon. You would think that in California of all places that you could find competent IT professionals who could get a registration system not to crash. I guess not.


BREAKING: Gun Owners, Civil Rights Groups Seek Injunction in California “Assault Weapon” Lawsuit

California Attorney General Xavier Becerra and his DOJ botched
the “assault weapon” registration program, putting thousands of gun
owners at risk of felony charges. Gun owners and civil rights advocates
are crying foul – and taking them to court.


SACRAMENTO, CA
(August 15, 2018) — Attorneys for seven California gun owners and four
Second Amendment advocacy organizations announced today that they have
filed an amended complaint and a new motion seeking a preliminary injunction in the civil rights lawsuit Sharp, et al. v. Attorney General Xavier Becerra, et al. over
the California Department of Justice’s failures surrounding the ‘bullet
button assault weapon’ registration program. A copy of the court
filings can be viewed or downloaded online at https://www.firearmspolicy.org/sharp. 

The amended complaint added as plaintiffs four additional gun owners
who were denied their rights by the DOJ, and also added the DOJ’s Chief
of the California Justice Information Services Division, Joe Dominic, as
a defendant. The motion seeks to enjoin sections of the Penal Code
relating to so-called “assault weapons,” including provisions that
subject the possession or transportation of such firearms to serious
criminal liability, including potential felony imprisonment and property
seizure, “throughout the pendency of this case, or until” the
plaintiffs and gun owners like them “have had a reasonable opportunity,
as determined by the Court, to register the qualifying firearms through a
functional registration system.” 

The plaintiffs argue that the DOJ had a legal duty to provide a
functional registration system throughout the registration period, but
that they were unable to exercise their own rights and legal duties “due
to the Defendants’ actions and failures, including but not limited to
the inaccessibility, defects, and/or non-functionality of the DOJ’s
CFARS-based registration system.” Because of that, the plaintiffs argue,
the State violated their civil rights protected under the state and
federal constitutions and denied them their statutory right to register
their firearms to avail themselves of legal protections against harsh
criminal laws. 

“[As we argue in our motion], this is about the injustice of forcing
people to comply with a law, and then depriving them of the means to do
so,” said attorney George Lee, lead counsel on the case. “It is simply
unconscionable that the Attorney General would even think about
enforcing a law where his Department’s own failures led to many people’s
inability to register their firearms in the first place.” 

In a declaration filed
with the court, the plaintiffs’ technical expert said that “it is very
clear” the problems experienced by the plaintiffs and others across the
state “were caused by either the DOJ’s CFARS servers being overloaded
and/or possibly by one of the State of California datacenters itself
being unavailable due to network routing or overload issues.” 

“This is fundamentally a simple lawsuit about a troubling issue.
Attorney General Becerra and his DOJ had one job to do: Provide a
functional system for gun owners to use in registering their eligible
firearms. But instead of doing their jobs, they created a huge new mess
for law enforcement and put innocent people and lawfully-owned property
at serious risk,” explained Firearms Policy Coalition President Brandon
Combs. 

“This unjust California government-created problem must be stopped
immediately,” commented Second Amendment Foundation Founder and
Executive Vice President, Alan Gottlieb. “Gun owners should not be put
at risk due to state regulatory incompetence.” 

“The bottom line is that California cannot have it both ways. If the
state is going to require registration of firearms, it cannot make that
process illusory and set people up for confiscation of their property,”
said Gene Hoffman, chairman of The Calguns Foundation. “Here, Becerra
and DOJ failed to perform their duties, failed gun owners, failed the
Legislature and Governor Brown, and failed the people of the State of
California.” 

Elaborating on the case, Combs explained, “Because of Becerra’s and
DOJ’s disastrous, incompetent, and possibly malicious handling of one
simple task, now thousands of gun owners are at risk of having their
guns seized or destroyed, or going to jail, simply for driving to the
gun range with a firearm that they legally acquired years ago.” 

“It is beyond clear that Attorney General Becerra is so distracted by
federal issues and President Trump that he’s completely forgotten to
fairly and properly enforce the laws of his own state – and to protect
the civil rights of innocent people first and foremost,” Combs said. 

“These plaintiffs and others like them should not have to face a
district attorney or jury in a criminal trial because Attorney General
Becerra and DOJ set them up from day one,” said Jonathan Jensen,
vice-president of Firearms Policy Foundation. 

The civil rights lawsuit is supported by The Calguns Foundation
(CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition
(FPC), and Firearms Policy Foundation (FPF). The plaintiffs are
represented by attorneys George M. Lee and Douglas Applegate of San
Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as
Raymond M. DiGuiseppe, a former California deputy attorney general and
prosecutor. 

Californians who tried to register their firearms as “assault
weapons” before July 1 but were unable to, or who suffered a privacy
breach at DOJ, should contact the organizations’ Legal Action Hotline
immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510. 

Firearms Policy Coalition (www.firearmspolicy.org)
is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to
defend the Constitution of the United States, especially the
fundamental, individual Second Amendment right to keep and bear arms,
through advocacy, legal action, education, and outreach. 

Firearms Policy Foundation (www.firearmsfoundation.org)
is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to
defend the Constitution of the United States and the People’s rights,
privileges and immunities deeply rooted in this Nation’s history and
tradition, especially the inalienable, fundamental, and individual right
to keep and bear arms. 

The Calguns Foundation (www.calgunsfoundation.org)
is a 501(c)3 non-profit organization that serves its members,
supporters, and the public through educational, cultural, and judicial
efforts to advance Second Amendment and related civil rights. 

Second Amendment Foundation (www.saf.org)
is the nation’s oldest and largest tax-exempt education, research,
publishing and legal action group focusing on the Constitutional right
and heritage to privately own and possess firearms. Founded in 1974, The
Foundation has grown to more than 650,000 members and supporters and
conducts many programs designed to better inform the public about the
consequences of gun control.

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No Preliminary Injunction In California 1st Amendment Gun Store Case

July 17, 2015 by 3 Comments

California law prohibits a gun store from having advertising on the building indicating that they have handguns for sale. Obviously, this is a clear violation of the First Amendment rights of the store owners and it was for that reason that they sued California Attorney General Kamala Harris last November.

The judge hearing the case, US District Court Judge Troy L. Nunley, an appointee of President Obama, agreed that the First Amendment rights of the plaintiffs were being violated. Nonetheless, he refused to issue a preliminary injunction as it “would alter the status quo” and he found that this was a greater harm than the damage to the plaintiffs’ Constitutional rights.

Say what?

Please tell me what harm there is to the public by allowing a store to put a Team Glock sign or a S&W logo on their front display window.

I’ll let the CalGuns Foundation continue the story.

July 16, 2015 (SACRAMENTO, CA) – The State of California’s ban on
handgun-related speech by licensed gun dealers likely violates their
First Amendment speech rights, held a federal judge in
Sacramento earlier this morning. The order, issued by District Court
Judge Troy L. Nunley, found that the ban is probably unconstitutional,
likely doesn’t materially reduce crime, and likely irreparably harms
plaintiffs’ First Amendment right to express themselves the way they
wish to. Nonetheless, the judge allowed the restriction to temporarily
stand, while the case progresses further.

The gun dealers argued that California Penal Code section 26820—first
enacted in 1923—prevents them from displaying any “handgun or
imitation handgun, or [a] placard advertising the sale or other transfer
thereof” anywhere that can be seen outside their stores and
“unconstitutionally prevents firearms dealers from advertising even the
most basic commercial information—‘Handguns for Sale’—at their places of
business.”

In today’s order, Judge Nunley said that the State “does not meet its burden of showing that the Central Hudson elements,
in tandem with the additional First Amendment principles discussed
above, are met. Therefore, Plaintiffs raise serious questions going to
the merits of their First Amendment challenge to section 26820.

“On balance – based on the arguments and evidence currently before the
Court – the Court also finds it is more likely than not that Plaintiffs
will succeed on the merits of their First Amendment claim.”

While California Attorney General Kamala Harris had argued that the law
was useful in preventing handgun-related crime, the Court held
that “there is not adequate evidence produced by the Government showing
how, specifically, limiting impulse buys from passersby helps to manage
handgun crime and violence….the Government has not shown that the ban is
narrowly tailored to achieve the desired objective of managing handgun
crime and violence.”

Drawing an inference that most prospective gun store customers would
believe the dealers sell handguns in addition to other types of
firearms, the Court said that common-sense understanding “perhaps shows
the pointlessness of section 26820.”

In spite of the fact that the firearm dealer plaintiffs showed a
“likelihood of irreparable harm” to their First Amendment rights, and
Judge Nunley’s finding that Harris failed to show how the law actually
advanced public safety, the Court said that the public interest is best
served by allowing the California Department of Justice to continue
enforcing the challenged law during the course of the lawsuit.

“Granting the injunction would alter the status quo by requiring
California to alter its regulatory scheme and practices as they pertain
to firearms. Therefore, the Court takes the requisite caution in
deciding against altering the status quo. With due consideration to the
free speech considerations raised by Plaintiffs, which are also of
public interest, a cautionary approach that favors denial greater serves
the public interest than granting the injunction.”

The gun dealers noted that judge’s arguments for a “cautionary approach”
in denying the preliminary injunction are undermined by his conclusion
that the law likely isn’t really reducing crime.

In response to today’s ruling, California Association of Federal Firearm
Licensees (CAL-FFL) President Brandon Combs said that
the firearm dealers are reviewing the decision and
considering their options.

“While we are pleased that Judge Nunley agrees with us on the law’s
likely unconstitutionality, it’s disappointing that he would allow the
State of California to continue enforcing it during the balance of
litigation.

“If this were a speech case about abortion providers rather than gun
dealers, I doubt very seriously that the Court would have allowed the
law to stand while it was being litigated. For that matter, it’s hard to
imagine that Attorney General Harris would have bothered defending it.

“We look forward to the plaintiffs’ next steps and will continue to
support the case until the law is overturned and our dealers’ First
Amendment rights are restored.”

Today’s order in Tracy Rifle and Pistol, LLC, et al. v. Attorney General Kamala Harris, et al. and other case documents can be viewed at calgunsfoundation.org/litigation/trap-v-harris.

The lawsuit is supported by CAL-FFL, California’s firearm industry association, as well as Second Amendment rights groups The Calguns Foundation and Second Amendment Foundation.                         

UPDATE: Professor Eugene Volokh discusses the case at the Washington Post. He advised on the case and thinks the judge got it wrong here.

As we noted in our reply, the “impulse buying” rationale for the law rests thus on a rather far-fetched argument. It imagines a person who is in the grip of some emotion (presumably anger, jealousy or depression). He “otherwise might not enter [a] store” (to quote the state) to buy a handgun — even though he is seized by an emotion that presumably makes him contemplate violence, and even though everyone knows that handguns are commercially available.

That the store is free to have a sign saying “Guns” and has signs depicting rifles or shotguns does not influence him at all. But when he sees the word “handguns” or a picture of a handgun, he “respond[s] on impulse,” and then waits 10 days to get a handgun that he otherwise wouldn’t buy. After those 10 days are up, he then proceeds to commit a handgun crime (or commit suicide). His rage or depression is thus strong enough to last 10 days — but so weak that they wouldn’t drive him to get a handgun, were it not for an ad that specifically depicts or mentions a handgun (as opposed to some other gun).

The court agrees that this sort of argument isn’t reason enough to justify a restriction on speech promoting handguns. I think it likewise can’t justify keeping in place a restriction that the court has recognized likely violates the First Amendment; instead, as is normal for such likely unconstitutional speech restrictions, the restriction should be preliminarily enjoined while the litigation proceeds.