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SCOTUS Gun Watch – Week of 11/15/2021

As we wait for the Supreme Court’s opinion in Bruen to come down later this Term, I’m tracking not only what new Second Amendment challenges are filed, but which ones the Court decides to hold in an anticipation of the outcome in Bruen. Especially as we get closer to an opinion in the case, those decisions about which cases to hold and which to deny cert may give us a picture about how broadly the Court expects its ruling to be. In the meantime, I’ve added one new petition—which is noteworthy for the fact that it challenges the existence of a public carrying licensing scheme in full. Bruen argued that nationwide shall-issue is constitutionally required. Hatch argues that nationwide permitless carry is.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Cert Granted; argued on Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

reply due @ 3-Dec-2021

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

response due 29-Nov-2021

(response requested by Court)

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

Cert Denied

Hatch v. Minnesota

(21-667)

Minn. Sup. Ct.

1-Nov-2021

Challenge to Minnesota’s requirement that a person get a permit to carry in public

response due 6-Dec-2021

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

 




Debriefing Bruen with Mary McCord

Tomorrow, Nov. 11, the Center is hosting a lunch time discussion with Mary McCord, Executive Director, Institute for Constitutional Advocacy and Protection and a visiting professor of law at Georgetown University Law Center up in Washington, D.C. We’ll be unpacking observations from the Supreme Court’s arguments last week in Bruen.

Registration is required, but the event is otherwise open to all. RSVP here: 

https://dukeindc.duke.edu/eventbrite-event/the-future-of-the-second-amendment/

*Guests are expected to be vaccinated and to follow D.C. health and safety requirements under effect at the time of the event. All guests must wear masks inside the building.*




SCOTUS Gun Watch – Week of 11/8/2021

Obviously the big news from last week was arguments in Bruen. I posted a round-up of the Center leadership’s media interviews leading up to and after the case here. And then I wrote an analysis piece for the Washington Post’s Monkey Cage on Friday that broke down some of the themes I saw in the argument. We will obviously be writing more about the case in the weeks to come, and especially how they influence the remaining Second Amendment cases that are pending before the Court.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Cert Granted; arguments held Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

reply due @ 3-Dec-2021

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

response due 29-Nov-2021

(response requested by Court)

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

distributed for 12-Nov-2021 conference

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

Cert Denied

 




Center Media Round-up on Bruen

As we continue to process the oral arguments in Bruen (see some quick reactions here), we will be writing more about our impressions and analyses of what might come next. In the meantime, below are some of the media interviews that Center leadership did in the days leading up to and in response to Bruen:




Bruen – Quick Reactions & Live Thread

This morning, the Supreme Court held oral argument in New York State Rifle & Pistol Association v. Bruen. The case has the potential to revolutionize Second Amendment doctrine, and we’ve covered the case several times on this blog, including in the overview post here and our what-to-watch-at-argument post here. We’ll have much more to say in the days and weeks ahead about what to make of the oral arguments and our reactions to both the advocates and the justices, but for now, here are some of our very quick, initial first takes on several aspects of this morning’s discussion:

  • The justices appeared skeptical about the NY law, and particularly the discretion it affords licensing officials.
  • There was a lot of focus on place-restrictions – I think the justices wanted to be sure that if they struck down the law it wouldn’t mean guns were just allowed everywhere. (Justice Barrett asked about guns in Time Square on New Year’s Eve, for example.)
  • It was hard to get a read on methodology, but I’d say it seemed like several of the justices were leaning toward text, history, and tradition but with acknowledgement of the hard historical lines and contested historical landscape. 
  • Race seemed to play a less salient role than I think we expected, especially from the amicus briefing. 
  • Several of the justices–including surprisingly Justice Thomas–seemed to think maybe it was okay to have gun laws vary by locality, like from urban to rural areas. Others seemed much more skeptical of that notion. 
  • None of the justices appeared particularly worked about about the notion of a permit at all, but instead about a discretionary permit like in this context. (And the challengers’ counsel did not argue that all permits are unconstitutional, only this kind.)

I also live-tweeted my way through the argument, so to tide people over until there’s a transcript (or to read a condensed version of the transcript), here’s a link to the thread:

 




Public Carry, History, and Enforcing Gun Laws

In their reply brief before the Supreme Court, the challengers in Bruen claimed that “neither the state nor any of its amici has been able to identify a single instance before the twentieth century of someone being successfully prosecuted for the bare act of carrying a common firearm for self-defense.” This is a surprising, and surprisingly inaccurate, claim.

Just to name one example, in State v. Reid, a case decided by the Alabama Supreme Court in 1840, a sheriff (!) was successfully prosecuted for carrying a pistol concealed, in violation of a state law barring that conduct. The state supreme court rejected his claim that the statute violated his right to keep and bear arms. As to his need to carry the gun for self-defense, the court noted that the trial had established that the sheriff had “been attacked by an individual of a dangerous and desperate character, who afterwards threatened his person,” that the threatening person “came to his office several times to look for him” and that the sheriff’s friend brought him a pistol because the friend “conceived his life was in danger.” Yet, in spite of his carrying of a common weapon for self-defense, not only did the court uphold the statute as constitutional, it also affirmed the trial court’s refusal to give a self-defense jury instruction. The sheriff sought to have the court charge the jurors that “if they believed from the evidence, that the defendant carried the weapon concealed for the purpose of defending his person, and that it was necessary to carry the weapon concealed for that purpose, then, they should acquit the defendant.” In the court’s view, there was no evidence the sheriff needed to carry the weapon concealed: “If the emergency is pressing, there can be no necessity for concealing the weapon, and if the threatened violence will allow of it, the individual may be arrested and constrained to find sureties to keep the peace, or committed to jail.” Many amici in Bruen did in fact cite Reid.

But Reid—and the many other cases from before the 20th century upholding convictions like it—are not the only evidence of successful prosecutions. To be sure, there has to date been little historical work done on the enforcement history of the many gun regulations throughout the Founding and Reconstruction era that Heller made newly relevant. Fortunately, a remarkable recent article from historian Brennan Rivas sheds light on just how rich this uncovered history might be.

In a forthcoming U.C. Davis Law Review article, “Enforcement of Public Carry Restrictions: Texas as a Case Study,” Rivas chronicles a significant number of public carry prosecutions in Texas between 1870 and 1950, such those for violating its 1871 deadly weapons law that “was a sweeping prohibition against the open or concealed carrying of deadly weapons,” including pistols. Rivas sampled four Texas counties and surveyed the surviving records. Among just these four counties in this time period, Rivas found 3,256 separate cases. Of those, “1,885 left a record of the final adjudication. Among those, 1,684 resulted in guilty judgments or appeals (89% of those with known outcomes; 52% of the total); 200 resulted in not guilty judgments (11% of those with known outcomes; 6% of the total).” 406 cases were dismissed or had indictments quashed. In other words, she found thousands of enforcement records in just four of Texas’s 254 counties. More than 1,500 people in this time period, in these four counties, were found guilty of violating the laws restricting public carry.

Rivas also found that the enforcement of these laws was not always racist or racially motived. Instead, “[t]he graphs of long-term enforcement within my sample show that racially biased enforcement of the deadly weapon law evolved over time and manifested itself during the 1890s. I believe this turning point is directly related to the collapse of Black voting rights in Texas during that decade, and the resulting erosion of Black political power locally.”

Rivas’s work helps to shed light on gun law enforcement in American history—an increasingly important topic deserving significant attention going forward.




Gun Industry Tort Shields and DOJ’s Defense of Congressional Enactments

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA). That law provides fairly robust protection for most gun industry actors (e.g., manufacturers and dealers) when a firearm is used by a third party to cause harm. There’s a fair debate to be had about whether most of the lawsuits that PLCAA displaced were grounded in existing tort principles or were seeking unjustifiable expansions of traditional tort law. But there shouldn’t be any real argument that PLCAA is unique.

Besides a few minor contexts in which Congress has provided similar tort protections—usually paired with some alternative compensation regime (see, e.g., vaccines)—no other major industry benefits from such broad immunity across the board. Auto manufacturers, for example, are left to fend off civil lawsuits—even the frivolous ones—in the courtroom the same way ordinary Americans are. Ever since Congress passed PLCAA, its opponents have argued that the law is unconstitutional because it violates federalism principles enshrined in the Constitution. But no court accepted that argument until last year when a Pennsylvania appeals court did in Gustafson v. Springfield. The case was recently reargued before the en banc appellate court in the state, making the issue even more salient. Because the Department of Justice maintains a strong presumption that it must defend the constitutionality of nearly all congressional enactments, it has stood by PLCAA. This accords with a host of past practice. As Andy Hessick has noted, “Typically, so long as a reasonable argument can be made supporting a statute’s constitutionality, the Department will defend the statute.” In congressional hearings this past week, Democratic members of Congress pushed Attorney General Merrick Garland on this point given Gustafson’s significance and the Biden Administration’s stated opposition to PLCAA. 

Gustafson is a good example of the kind of lawsuit that would be available under traditional tort principles against the manufacturer of other kinds of consumer goods but which PLCAA prevents. Unlike some of the more creative liability theories advanced against gun industry actors, Gustafson sounds in the heart of tort law. The facts are tragic. In 2016, 13-year-old J.R. Gustafson went to his 14-year-old friend’s house, where the older boy showed J.R. a handgun. The older boy removed the handgun’s magazine and thus believed the gun was empty. He was apparently unaware that a bullet remained in the chamber. The boy pointed the gun at J.R., pulled the trigger, and killed him. The case was a terrible accident, but one that could have been prevented. Earlier this year, the NRA’s flagship magazine described a magazine disconnector, or magazine disconnect safety, as a feature that ensures a handgun “cannot be fired if the magazine is even partially withdrawn, as the firing pin is mechanically blocked from striking the primer.” Although it noted that many see the magazine disconnector as “a welcome feature and another layer of mechanical safety,” the article described perceived drawbacks: a person may not fully insert the magazine when stressed, preventing the gun from operating, or may accidentally hit the magazine release when drawing the gun. Those benefits and drawbacks might well be jury questions (or at least questions for a judge) were it not for PLCAA’s bar to bringing most such claims in circumstances like J.R.’s.

The Restatement (Third) of Torts: Products Liability § 2(b) describes a product as defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller . . . and the omission of the alternative design renders the product not reasonably safe.” (A similar provision covers inadequate warnings.) As comment a to the provision provides:

Some sort of independent assessment of advantages and disadvantages, to which some attach the label “risk-utility balancing,” is necessary [in design defect cases]. Products are not generically defective merely because they are dangerous. Many product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable. Thus, the various trade-offs need to be considered in determining whether accident costs are more fairly and efficiently borne by accident victims, on the one hand, or, on the other hand, by consumers generally through the mechanism of higher product prices attributable to liability costs imposed by courts on product sellers.

That risk-utility balancing is often missing in gun cases because of PLCAA. To be sure, PLCAA does purport to allow garden variety product defect claims to continue. But there’s a wrinkle. Even for product defect claims, there’s no room to sue “where the discharge of the product was caused by a volitional act that constituted a criminal offense.” In J.R.’s case, the older boy was charged with homicide and eventually pleaded delinquent to involuntary manslaughter in juvenile court. Thus, the courts found that this provision of PLCAA barred the suit for claims of product defect against the gunmaker.

In its now-vacated decision, the Pennsylvania appeals court’s panel declared that PLCAA was unconstitutional because it exceeded Congress’s power under the Commerce Clause and violated the Tenth Amendment, relying at least in part on the Supreme Court’s holding in NFIB v. Sebelius that the Affordable Care Act’s individual mandate exceeded Congress’s Commerce Clause powers. The federal government filed a brief defending the constitutionality of PLCAA at that earlier stage and again when the case went en banc. Although critics have called DOJ’s customary practice into question—and even noted the ways in which the Trump Administration’s Justice Department shifted that traditional model—Attorney General Garland does not seem to be backing down from his view that DOJ ought to vigorously defend PLCAA.

In an October 21 congressional hearing, Congressman Ted Deutch, who represents a district that includes Parkland, Florida, asked Garland about DOJ’s intervention in civil cases when the constitutionality of PLCAA is at issue. Garland noted Biden’s opposition to PLCAA, but stressed: “our obligation in the Justice Department is to defend the constitutionality of statutes that we can reasonably argue are constitutional . . . whether we like the statute or not.” California Congressman Eric Swalwell followed up on this line of questioning, invoking Gustafson and asking whether DOJ would reconsider its view of PLCAA in light of that decision. Garland remained insistent, however: “The Justice Department has taken the position in court that we’re going to defend that statute as constitutional, and I don’t see a ground for changing our mind. I expect that the considerations that the judges in the Pennsylvania state court were brought to the attention of the Solicitor General’s office [sic].”

Assuming the Gustafson case continues through the stages of appellate review, potentially culminating in Supreme Court consideration, questions about DOJ’s defense become all the more significant. And when and if Gustafson influences other courts to consider these same arguments against the statute’s constitutionality more closely, DOJ’s intervention in these cases may raise the same concerns from advocates who decried Garland’s comments in his testimony this past Thursday.




SCOTUS Gun Watch – Week of 10/25/2021

Last week, the Supreme Court declined to put Texas’s abortion law, SB8, on hold pending litigation, but vastly accelerated the case timeline, scheduling it for argument next week—the same week the Court is set to hear Bruen. And, its conference this Friday, the Court will consider Harley, a Fourth Circuit case challenging § 922(g)(9), which bars firearm possession for any person with a conviction for misdemeanor domestic violence offense. Given the Court’s reception to as-applied challenges to prohibited possessors laws, Harley does not seem a likely grant, but it remains possible with the uncertainty surrounding Bruen. But one thing is clear–the next two weeks will bring the Court sharply into the public debate and heated disputes over two different constitutional rights. 

Petitions Pending

 

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Cert Granted; reply br. due @ 14-Oct-2021; arguments set for Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

distributed for 29-Oct-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

response due 3-Nov-2021

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

response due 29-Oct-2021

(response requested by Court)

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

response due 5-Nov-2021

(waiver of right to respond filed)

 

Petitions Disposed

 

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

 




SCOTUS Gun Watch – Week of 10/18/2021

Bruen is now fully briefed, with oral arguments set for just over two weeks from now. The Supreme Court just recently granted the United States’ request to share argument time with the state in defending the law, so at the podium on November 3 will be the lawyer for the challengers arguing for 30 minutes, the lawyer for the state arguing 20 minutes, and the lawyer for the United States arguing for 15 minutes. In its order list this morning, the Supreme Court took no action on its pending cases in Young and Grewal, so we will just keep watching those two as well.

Petitions Pending

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

New York State Rifle & Pistol Association v. Bruen

(20-843)

2d Cir.

17-Dec-20

Challenge to New York’s good cause public carry regime

Cert Granted; reply br. due @ 14-Oct-2021; arguments set for Nov. 3

Association of New Jersey Rifle & Pistol Clubs v.

Grewal

(20-1507)

3d Cir.

26-Apr-21

Challenge to New Jersey ban on magazines holding 10 rounds or more

distributed at 27-Sep-2021 conference

Young v. Hawaii

(20-1639)

9th Cir.

11-May-21

Challenge to Hawaii’s restrictive open carry law

distributed at 27-Sep-2021 conference

Harley v. Garland

(21-104)

4th Cir.

22-July-2021

As-applied challenge to § 922(g)(9) (conviction for misdemeanor domestic violence offense)

distributed for 29-Oct-2021 conference

Aposhian v. Garland

(21-159)

10th Cir.

2-Aug-2021

Challenge to agency deference re the bump stock ban

response due 3-Nov-2021

P.Z. v. New Jersey

(21-175)

N.J. Superior Ct.

4-Aug-2021

Challenge to N.J. law permitting firearms seizure/prohibiting possession pursuant to DV restraining order

response due 29-Oct-2021

(response requested by Court)

Bello v. Rockland County

(21-514)

2d Cir.

4-Oct-2021

Fourth Amendment and due process challenges to New York policies about the return of firearms after disqualification

response due 5-Nov-2021

 

Petitions Disposed

Case

Ct. Below

Pet. Filed

Implicated Law/Issue

Status

Flick v. Rosen

(20-902)

11th Cir.

29-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Fleury v. Massachusetts

(20-1122)

App. Ct. Mass.

2-Nov-20

Challenge to Mass. firearm storage law

Cert Denied

Holloway v. Barr

(20-782)

3d Cir.

3-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Mai v. United States

(20-819)

9th Cir.

9-Dec-20

As-applied challenge to 922(g)(4)

Cert Denied

Folajtar v. Barr

(20-812)

3d Cir.

11-Dec-20

As-applied challenge to 922(g)(1)

Cert Denied

Greer v. United States

(19-8709)

11th Cir.

8-Jun-2020

Scope of appellate review for Rehaif errors

Decided 14-June-2021

Caniglia v. Strom

(20-157)

1st Cir.

10-Aug-20

Fourth Amendment challenge to gun removal

Decided 17-May-2021

Hobbs v. United States

(20-171)

6th Cir.

13-Aug-20

Guilty plea under 922(g) without knowledge of disqualifying status

 

Cert Denied

United States v. Gary

(20-444)

4th Cir.

5-Oct-20

Guilty plea under 922(g) without being informed that knowledge is an element of the offense

(Govt is petitioner)

Decided 14-June-2021

Rodriguez v. San Jose

(19-1057)

9th Cir.

21-Feb-20

Warrantless search and seizure of firearms under Fourth Amendment

Cert Denied

Johnson v. United States

(19-1390)

4th. Cir.

12-Jun-20

Vagueness challenge to the Armed Career Criminal Act’s elements clause

Cert Denied

Zoie H. v Nebraska

(19-1418)

Neb. Sup. Ct.

22-June-20

 

Second and Sixth Amendment challenge to jury-less conviction that can result in gun disqualifer for juveniles

Cert Denied

Caldara v. City of Boulder

(20-416)

10th Cir.

24-Sep-20

Federal court abstention over Second Amendment claims being adjudicated in state court

Cert Denied

Torres v. United States

(20-5579)

9th Cir.

27-Aug-20

As-applied challenge to 922(g)(1)

Cert Denied

E.H. v. Florida Dept. Ag. (Pro se)

(20-627)

Fla. Ct. App.

9-Oct-20

Challenge to firearm license denial based on prior mental health commitment

Cert Denied

Porter v. United States

(20-522)

6th Cir.

16-Oct-20

Challenge to ACCA enhancement

Cert Denied

McGinnis v. United States

(20-6046)

5th Cir.

13-Oct-20

As-applied challenge to 922(g)(8)

Cert Denied

Yoo v. United States

(20-550)

5th Cir.

21-Oct-20

Challenge to conviction based on misstatements on Form 4473 (req’d for purchase at a gun dealer)

Cert Denied

Knowles v. Hart

(20-840)

11th Cir.

17-Dec-20

Fourth Amendment challenge to use of deadly force against person with holstered weapon

Cert Denied

Libertarian Party of Erie County v. Cuomo

(20-1151)

2d Cir.

9-Feb-21

Challenge to New York’s pistol permit regime

Cert Denied

Keahey v. Marquis

(20-1298)

6th Cir.

16-Mar-21

Failure to give self-defense instruction

Cert Denied

Russell v. New Jersey

(20-1419)

N.J. Superior Ct.

2-Apr-21

Challenge to New Jersey’s good cause public carry law

Cert Denied

Reyes-Torres, v. United States

(20-7714)

5th Cir.

5- Apr-2021

Challenge to § 922(g)(5) (federal law barring undocumented immigrants from possessing firearms)

Cert Denied

Weber v. Ohio

(20-1640)

Ohio Sup. Ct.

21-May-21

Challenge to Ohio law barring carrying/using firearms while intoxicated

Cert Denied

Roundtree v. Wisconsin

(20-1706)

Wisc. Sup. Ct.

4-June-2021

Challenge to state law prohibiting firearm possession by non-violent felon

Cert Denied

 




New Scholarship on Extreme Risk Protection Order Laws

The University of Alabama Law School’s Law & Psychology Review has now published several pieces that came out of a symposium last year, Seeing Red: Risk-based Gun Regulation about (primarily) Extreme Risk Protection Order Laws (also known as red flag laws). Joseph and I presented on our Virginia Law Review piece “Firearms, Extreme Risk, and Legal Design: ‘Red Flag’ Laws and Due Process.” And Center faculty affiliate Jeff Swanson presented on his research, including what he and several colleagues published about the effectiveness of Connecticut’s ERPO-like law, “Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?” Several of the other pieces that have recently been uploaded to Westlaw are below:

  • David B. Kopel, Red Flag Laws: Proceed with Caution, 45 Law & Psychol. Rev. 39 (2021)

From the Introduction (footnotes omitted):

“Red flag” laws, or “Extreme Risk Protection Orders,” (“ERPOs”) have been enacted in several states. While the idea for these laws is reasonable, some statutes are not. They destroy due process of law, endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm innocent victims.

Many such orders are improperly issued against innocent people.

The Conference of Chief Justices asked the Uniform Law Commissioners to draft a national model red flag law, but the Giffords organization blocked the effort—lest it offer an alternative to the extreme and reckless system being pushed by Giffords and related groups, most notably the Bloomberg entities.

When Confucius was asked what would be the first step if a government sought his advice, he answered: “It would certainly be to rectify names …. If the names are not correct, language is without an object.” Bills that claim to be about “Extreme Risk Protection Orders” are not correct; the bills cover much lower-level risks, or just “dangers.” Likewise, the term “red flag” is dubious because some bills label as dangerous the peaceable exercise of constitutional rights. A more accurate name for these laws is “gun confiscation orders.”

Such orders can be legitimate when fair procedures accurately identify dangerous individuals. Such laws include the following features:

  • Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.

  • Ex parte hearings only when there is proof of necessity.

  • Proof by clear and convincing evidence that has been corroborated.

  • Guarantees of all due process rights, including cross-examination and right to counsel.

  • Court-appointed counsel if the respondent so wishes.

  • A civil remedy for victims of false and malicious petitions.

  • Safe and orderly procedures for relinquishment of firearms.

  • Strict controls on no-knock raids.

  • Storage of relinquished firearms by responsible third parties.

  • Prompt restoration of concealed carry permits for the falsely accused.

  • Prompt return of firearms upon the termination of an order.

  • Renewal of orders based on presentation of clear and convincing proof.

  • Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.

  • Jack Kappelman, Just A Minor Infringement: How Florida’s Extreme Risk Protection Order Applies to at-Risk Youth and Other Household Members, 45 Law & Psychol. Rev. 19 (2021)

From the Introduction (footnotes omitted):

Suicide by firearm is perhaps one of the most overlooked public health crises in the United States. With over 23,000 firearm suicides every year, and nearly five-percent of those suicides being minors under the age of eighteen, this issue is cause for serious concern. When it comes to gun violence, mass shootings and gruesome homicides garner much of the public attention, but suicide remains the leading form of firearm violence–accounting for nearly two-thirds of all gun deaths in the United States. Youth suicide by firearm–though only a relatively small proportion of all firearm suicides nationally–has continually increased in severity, with recent studies showing a nineteen-percent increase in the rate of suicide by firearm in the last ten years, and young white men being the most adversely affected population. As the issue has grown, many states have sought to adopt restrictive firearm policies designed to reduce the rate of suicide by firearm, with some of these policies specifically focusing on the prevention of youth suicides. Of these policies, many states have focused on designing child access prevention (CAP) laws or have set minimum age purchase and possession statutes to regulate the access that minors have to firearms.

Even with the adoption of these policies, suicide by firearm remains a pressing issue. Recent studies have pointed to a relationship between firearm ownership and the risk of firearm injury or violence, with one study finding that simply having a firearm in the home can increase the likelihood of death by firearm suicide as much as three times. As far as minors are concerned, ease of access to firearms plays an important role in the likelihood of suicide by firearm, as studies have shown that adolescent victims of suicide often use unlocked firearms found in their place of residence. Unlocked firearms, along with firearms that are loaded when stored, are more likely to be used in a suicide attempt than firearms locked in storage or left unloaded. With these points in mind, it is clear that a major issue relating to firearm suicide by minors is the ease of access that minors have to deadly weapons. Therefore, in order to reduce the rate of suicide by firearm among youth populations, efforts should be made to limit the access that minors have to firearms.

This paper will seek to discuss: (1) how a statute in Florida has been used to address the issue of youth suicide by firearm, (2) the details of how the statute is written and how it applies to minors, and (3) a discussion of whether or not the statute–as written and as theoretically applied under specific circumstances–may or may not be constitutional. In order to determine the constitutionality of the statute, this paper approaches the analysis of the statute with an overview of relevant court precedent and discusses whether the statute would survive intermediate scrutiny.

  • Matthew Larosiere & Joseph G.S. Greenlee, Red Flag Laws Raise Red Flags of Their Own, 45 Law & Psychol. Rev. 155 (2021)

From the Introduction (footnotes omitted):

This article analyzes “red flag” laws. These laws permit the confiscation of property and the deprivation of the right to keep and bear arms without due process, if the petitioner can convince the court that the defendant may otherwise commit violence. Part II describes red flag laws generally, with some examples. It includes an analysis of the short history of this species of law, followed by a rundown on the present state of the issue. Part III describes the potential for abuse inherent in these laws, which has generated passionate opposition. Part IV explores the relative efficacy of these laws, as well as the metric problems posed by their study. Part V discusses the future of this type of policy as it appears to us. Part VI offers a brief conclusion.