Litigation Highlight: Third Circuit Leaves Delaware Assault Weapons Ban in Place on Procedural Grounds

On July 15, the Third Circuit issued its decision in Delaware State Sportsmen’s Association v. Delaware Department of Safety & Homeland Security (“Delaware Sportsmen’s”)—a Second Amendment challenge to Delaware’s 2022 assault weapons and large capacity magazine ban.[1]  While challenges to categorical bans on assault weapons and LCMs are a major current flashpoint in Second Amendment law and a likely candidate to reach the Supreme Court soon, the Third Circuit’s decision is notable for reasons that actually have very little to do with guns.  Rather, Judge Stephanos Bibas’ opinion for the panel focuses on the procedural posture of the case and just how relevant a merits prediction should be to a court’s decision on emergency relief.

Delaware enacted its ban in June 2022—in fact, the law took effect on June 30, 2022, just one week after Bruen was decided.  Multiple plaintiffs challenged the law shortly thereafter, asking federal district courts to preliminarily enjoin it.  In the civil context (for pre-enforcement challenges to assault weapon bans, LCM bans, age restrictions, sensitive-place prohibitions, or permitting restrictions) the initial stage of litigation is almost always a request by the plaintiffs for a preliminary injunction.  In theory, this is an emergency proceeding where the likelihood of eventual success in the case is only one factor that a judge must weigh in determining whether to enjoin a law while a case remains live.

The district court consolidated the cases challenging Delaware’s law, held a hearing, and denied the requested preliminary injunction while also setting a trial date for late 2023.  The district judge conducted an extensive analysis of the plaintiffs’ likelihood of success on the merits, ultimately finding that assault weapons and LCMs are protected “arms” but that they implicate unprecedented societal concerns and that Delaware’s law was consistent with a historical tradition that “dangerous weapons[] were subject to remarkably strict and wide-ranging regulation when they entered society, proliferated, and resulted in violence, harm, or contributed to criminality.”  Rather than move forward to trial, the challengers instead appealed the preliminary injunction ruling to the Third Circuit. During that time, the district court proceedings were stayed.

The panel opinion in Delaware State Sportsmen’s briefly traced the history of equitable relief, including injunctions directing a party to act or refrain from acting in a certain way pending the outcome of litigation.  The opinion explained that a preliminary injunction is reserved for “extraordinary” circumstances.  The court observed that preliminary injunctions often must be decided on a limited factual record without “adversarial testing”—a process that can tempt courts to jump to conclusions prematurely and might improperly “freez[e] first impressions in place” for the remainder of the case.  Rather than view preliminary injunction proceedings as primarily designed to prevent possible harm to parties in the intervening period, Judge Bibas noted that the real purpose of such emergency proceedings should be to keep things as they are until the judiciary can decide the merits with the benefit of evidence and briefing after trial.  The panel explained that “the threat of irreparable harm does not automatically trigger a preliminary injunction” and decried that preliminary injunctions have become too common in recent years because courts are overly focused on harm prevention rather than “case preservation.”

Applying the four-factor preliminary injunction test,[2] the court began with the risk of irreparable harm absent an injunction.  Judge Bibas wrote that there was no presumption of harm in Second Amendment cases and that the plaintiffs here had failed to show a real risk of such harm. Specifically, the opinion noted that “[t]he challengers have shown no harms beyond ones that can be cured after final judgment” and alleged only generalized injury.  The court found it critical that the challengers alleged neither that “that Delaware has tried to enforce the disputed laws against them . . . [nor] a time-sensitive need for such guns or magazines.”  To underscore the point that “[a] preliminary injunction is not a shortcut to the merits,” the panel opinion did not address the plaintiffs’ likelihood of success on the merits and instead found that the lack of irreparable harm was sufficient to affirm because “any one factor may give a district court reason enough to exercise its sound discretion by denying an injunction.”

While the Third Circuit opinion noted that the lack of any concrete, identifiable harm would be enough to affirm the district court, it went on to identify two additional reasons why denying a preliminary injunction was in the public interest.  First, the panel said that courts should “hesitate to interfere with exercises of executive or legislative authority” or block the enforcement of “democratically enacted state laws” at the preliminary injunction stage.  And, second, the opinion suggested that the challengers had been less than diligent in pursuing their claims—casting doubt on the necessity of emergency relief.  The Delaware Sportsmen’s Association, for example, waited several months after the law was enacted to file suit and then “cho[se] not to hasten to trial.” 

Judge Roth filed a concurrence indicating her view that the plaintiffs are also not likely to succeed on the merits of their Second Amendment claims because the banned weapons and accessories are not protected “arms.”

It’s reasonable to think that Judge Bibas takes the opposite view as Judge Roth on the merits—in other words, that he would ultimately find that the Delaware law contravenes the Second Amendment rights of Delaware gun owners.  In fact, he implies as much by lamenting how preliminary injunction proceedings can, and often do, lock in a merits determination and suggesting that “judges [should] not always stick with those [first] impressions—and the system trusts judges to update them as a case proceeds.”  The implication here, I think, is that this is an instance where Judge Bibas himself is likely not to stick with his initial determination and would or will find that the plaintiffs are entitled to relief at a later stage in the case.  But the opinion picks up on a broader trend of skepticism about the merits piece of the preliminary injunction inquiry—driven, perhaps, in part by the increasing volume of emergency requests that have appeared on the Supreme Court’s docket in recent years. 

For example, the Court recently denied certiorari in NAGR v. Naperville, a nearly identical challenge to Illinois’ recent assault weapons and LCM ban, with only one noted dissent.  Justice Thomas, who is clearly eager for the Court to take up an assault weapons case and has been for some time, agreed with the denial and wrote that “[t]his Court is rightly wary of taking cases in an interlocutory posture” (i.e., to review a lower court’s decision on a preliminary injunction).  And, as I noted in a prior post, Chief Justice Roberts and Justice Barrett have each written opinions critical of the Court’s tendency to use emergency applications to “peak” at the merits—the very point Judge Bibas emphasized in Delaware Sportsmen’s.  As Justice Barrett noted in a 2021 concurrence, litigants should not be able to “use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument.”

This brings me to a related point raised in Delaware State Sportsmen’s: that courts should take the risk of irreparable harm seriously and, perhaps, more seriously than examining the likelihood of success on the merits.  Judge Bibas was not convinced by the plaintiffs’ showing on this point, observing that they failed to “allege a time-sensitive need for [] guns or magazines” prohibited by the Delaware law.  That’s an important point, and one that will almost certainly hold in other assault-weapons and LCM cases in the same procedural posture.  Because the plaintiffs are free to obtain and keep other guns (such as handguns) and use those other guns to defend themselves, it’s difficult to imagine how they could ever allege a time-sensitive need for the banned weapons or accessories.  There is much debate in these cases about whether semiautomatic rifles or magazines holding a certain number of rounds might be useful for self-defense generally; yet, regardless of the answer to that question, it will be difficult if not impossible to show that these weapons or accessories are necessary for self-defense on a specific time horizon.  By contrast, challenges to age or carry restrictions, for example, might present a stronger case for emergency relief under the irreparable harm factor.  After all, the plaintiffs in such cases could be banned from carrying or even possessing any firearm for a period of time—like the plaintiffs in Bruen, which similarly came to the Court on early-stage motion to dismiss briefing without the benefit of a trial record.