Category: Courts

Sixth Time the Charm for Snope at SCOTUS?

We can only hope. The Supreme Court has once again scheduled both Snope v. Brown and Ocean State Tactical v. Neronha for debate in conference this week, keeping hope alive that the justices will grant cert to one or both cases next week.

This Friday’s conference will be the sixth appearance for Snope (which is the challenge to Maryland’s ban on so-called assault weapons), while Ocean State Tactical (taking on Rhode Island’s ban on “large capacity” magazines) is up for its seventh go-round behind closed doors as the justice decide what cases they’ll accept. The good news is that neither of these cases were disposed of in today’s orders, but that still doesn’t mean that either or both are guaranteed to be heard by SCOTUS in the future.

I have to say that I’m still cautiously optimistic as well. Both Snope and Ocean State Tactical have been heard in conference since mid-December (December 4, in the case of Ocean State Tactical), which is more than enough time for Justice Thomas, Gorsuch, or Alito to write a dissent from denial of cert.

Of course, that’s also plenty of time for four justices to vote to hear one or both of these cases, and that doesn’t appear to have happened yet either.

We have no idea what’s being said during conference, or what’s causing the hold up, but there’s a slate of other Second Amendment cases that are heading the Court’s way, so the justices will have plenty of 2A topics to choose from in the near future.

A cert petition was filed in Antonyuk v. James (taking on New York’s post-Bruen carry laws) last month, and a reply is due from the New York AG this Wednesday, so that could be heard in conference in early March.

The Court has requested a response from the University of Michigan in Wade v. UofM, which challenges the university’s ban on concealed carry, and that response is due on March 10. That’s the same day that the Firearms Policy Coalition and Second Amendment Foundation must submit their response to the state of Minnesota in Jacobson v. Worth. The challenge to Minnesota’s ban on carrying for under-21s was successful at the Eighth Circuit Court of Appeals, but Minnesota Attorney General Keith Ellison is intent on defending the ban til the bitter end.

The DOJ has a deadline of March 17 to reply to the cert petition in Perez-Garcia v. United States, which is an as-applied Second Amendment challenge to firearms-related pretrial release conditions. It’ll be interesting to see how AG Pam Bondi responds to the lawsuit and whether the Justice Department will defend the current law that allows for defendants to be prohibited from possessing a firearm before they’re convicted of a crime.

California Gov. Gavin Newsom and Attorney General Rob Bonta have a March deadline of their own in B&L Productions v. Newsom, which takes on the state’s prohibition on contracting for, authorizing, or allowing the sale of any firearm or ammunition on state-owned property. The law is designed to kill off the biggest gun shows in the state, and has been upheld by the Ninth Circuit Court of Appeals. The state’s reply brief is due on March 20, about one week before the federal Justice Department’s deadline to reply in the last 2A-related case to come before the Court’s attention next month.

On March 28th the DOJ’s reply brief in Missouri v. United States is due before the justices. Missouri is seeking to defend the Second Amendment Preservation Act, which lower courts have thrown out a violation of the Supremacy Clause of the Constitution. The law was mean to block local and state law enforcement from cooperating with the feds in enforcing constitutionally suspect firearm statutes, but Missouri argues that the state has the power under the Tenth Amendment to decide which laws should be treated as null and void in the Show Me State.

As great as it would be for the Court to greenlight every one of these cases, that’s not likely to happen. Heck, at this point it’s an open question as to whether the justices will grant cert to any of these lawsuits. Fingers crossed that by this time next week we’re celebrating a grant in Snope and Ocean State Tactical instead of gritting our teeth in frustration.

The AP’s feelings get hurt; it’s a First Amendment crisis!

The Associated Press (AP) makes its money selling stories to other media outlets. It pays “stringers”—reporters and photographers—around the world to submit stories, which it makes available to its subscriber outlets who can’t afford to send reporters and photographers around the globe.

That’s a good thing for smaller media outlets like local new stations, but it’s also a very bad thing because then the AP makes mistakes, or goes woke, so do its subscribers who have no way of knowing they’re making those mistakes. They do know they’re going woke, but even if they’d rather not, their choice is to play along or drop the AP feed. A good example of the AP’s wokeness and anti-Americanism is this:

Shira Bibas’ sons “died in captivity.” An honest and accurate account would say Bibas and her boys, 4 and 10 months, were savagely strangled by Hamas terrorists, and their bodies were clumsily mutilated so Hamas could claim they died in an Israeli airstrike, a perversely stupid and easily exposed lie.

The AP also uses its style guide to enforce wokeness and media outlets, including the majors, happily go along. It’s an enviable perch atop the media hierarchy and the AP has become used to certain perks, among them, a prominent chair in the White House Press Room.

Until, that is, the AP decided to keep calling the Gulf of America the Gulf of Mexico, and Press Secretary Karoline Leavitt, surely with the permission of President Trump, banished them, also from Air Force One and other places and events. This is also surely a part of Leavitt’s reshuffling the Press Room deck, booting established outlets replacing them with new media.to give new media a chance.

The horror.

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Massachusetts vs. the Second Amendment

In Massachusetts, a legal battle is unfolding that should resonate with every conservative who values the sanctity of the Second Amendment. Escher v. Mason isn’t just about firearms; it’s a litmus test for how we view adulthood, responsibility, and constitutional rights in contemporary America.

The Massachusetts law in question, House Bill 4885, strips legal adults aged 18 to 20 of their right to purchase, possess, or carry semiautomatic firearms and handguns. This isn’t merely overreach; it’s a direct assault on the clear text of the Second Amendment, which does not discriminate by age among “the people.” If we are to take our Constitution seriously, we must defend the rights of all citizens, not just those deemed “mature enough” by the state’s paternalistic gaze.

At the heart of this legal challenge lies a fundamental conservative principle: the inviolability of individual rights. The Founders did not carve exceptions into the Second Amendment for age. They understood that freedom and responsibility go hand in hand, which is why 18-year-olds have been historically recognized as adults — capable of voting, joining the military, and, yes, bearing arms. The Militia Act of 1792, enacted shortly after the ratification of the Second Amendment, explicitly included 18-year-olds in the national defense, expecting them to be armed like their elders.

This historical precedent is not just a footnote but the bedrock upon which the plaintiffs in Escher v. Mason stand. They argue that there is no traditional basis for denying these rights to young adults. The Supreme Court’s decisions in Heller and Bruen have made it abundantly clear that firearms “in common use” are constitutionally protected. Semiautomatic firearms and handguns are the dominant tools of self-defense in modern America. To deny these to a segment of the adult population is not only anachronistic but egregiously unconstitutional.

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Franklin Armory and FRAC Defeat ATF, Judge Rules Words Mean Things.

The U.S. District Court in North Dakota today issued its opinion in the Firearms Regulatory Accountability Coalition (“FRAC”)-Franklin Armory firearms classification-related lawsuit against ATF. In his ruling, Judge Daniel M. Traynor vacated the ATF’s prior misclassifications of Franklin Armory’s Reformation and Antithesis firearms. Judge Traynor’s ruling solidifies what the firearms industry has known for years—that the ATF has been abusing its firearms technology classification powers.

Per the Court’s opinion:

Franklin Armory presented a square peg, and ATF shoved it into a round hole. If Congress wanted “shotgun” to be a catch-all category for anything that doesn’t fit “rifle,” it could have done so. . . . . It is not for ATF to redefine the terms because it thinks Congress didn’t intend a certain outcome. Therefore, ATF exceeded its authority in defining “smoothbore” as anything lacking “functional rifling.”

FRAC and Franklin Armory are reviewing the Court’s ruling and seeking further guidance from legal counsel as to the future of both Reformation and Antithesis under the law. Judge Traynor’s opinion declares that the “ATF classification of the Antithesis and reclassification of the Reformation [are] VACATED.” In response to ATF’s arguments, Judge Traynor retorted that “Administrative agencies need to remember they are in the executive branch and leave legislating to Congress.”

FRAC President & CEO, Travis White, stated that “the ATF has egregiously abused the firearms technology classification process, and this is a landmark ruling in reining in such abuses.”

Franklin Armory President Jay Jacobson said, “we spent years trying to reason with ATF leadership as they failed to classify firearms correctly. We hope that future agency leaders will stick to the law as passed by Congress. All we ever wanted was a good referee, not someone to throw the game.”

Judge Traynor’s summary judgment ruling in FRAC v. Garland, No. 1:23-cv-00003, can be found here.

Reason for Mexico Terror Threat Against U.S. Gunmakers Suggests Government in Pocket of Cartels

“Mexico threatens to escalate US gunmakers lawsuit with terror charges,” The Guardian reported Friday. “Claudia Scheinbaum warns of reciprocal action if Washington designates country’s cartels as terrorist groups.”

“If they declare these criminal groups as terrorists, then we’ll have to expand our US lawsuit… The lawyers are looking at it, but they could be accomplices,” Mexico’s president told the press, adding a time-worn disinformation go-to:

“She said the US justice department itself has recognized that ‘74% of the weapons’ used by criminal groups in Mexico come from north of the border.”

That’s the bit of calculated propaganda that primed ATF to implement Operation Fast and Furious “gunwalking,” creating calls for a renewed “assault weapon” ban (Note: Some of the links that follow go to the Internet Archive and may load slowly). The numbers may vary, but the lie remains constant.

It started out with voices like Kathleen Kennedy Townsend and then-Brady Campaign president Paul Helmke, claiming “American gun sellers supply the cartels with 95 to 100 percent of their guns.” The BBC put it at “90%.” Then it was 80%.

Here’s what they were all intentionally misstating:

“According to ATF’s Tracing Center, 90 percent of the firearms about which ATF receives information are traceable to the United States.”

“About which ATF receives information…” That’s not “all,” that’s what’s been selectively submitted for tracing. A Fox News analysis at the time concluded

“There’s just one problem with the 90 percent “statistic” and it’s a big one: It’s just not true. In fact, it’s not even close. The fact is, only 17 percent of guns found at Mexican crime scenes have been traced to the U.S.”

Here we are in 2025 and those lies are still being thrown out and “reported” unchallenged by media hacks who either don’t know, which makes them incompetent and unqualified informants, or do know, which makes them complicit in the deliberate deception and manipulation of their readers and viewers.

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Colorado Democrats Eyeing Ammo Restrictions in Addition to Semi-Auto Ban

While the constitutional abomination known as SB 3 has rightfully been getting a lot of attention as it makes its way through the Colorado legislature, it’s far from the only assault on our right to keep and bear arms under consideration in Denver this year.

On Thursday, a bill barring adults under the age of 21 from purchasing ammunition cleared a House committee, and could be up for a vote on the House floor as early as next week.

Though multiple courts around the country have shot down age-based restrictions that deny under-21s from keeping, bearing, and buying firearms since the Supreme Court’s decision in Bruen back in 2022, anti-gunners in the Rocky Mountain State have been empowered and emboldened by the Tenth Circuit Court of Appeals, which declined to block the state’s law banning firearm purchases to under-21s last November.

In their decision overturning a preliminary injunction against the age-based prohibition, the appellate court bizarrely concluded that age-related purchasing restrictions fall outside the scope of the Second Amendment, leaving the door open to Colorado imposing a ban (however unlikely) on adults of any age purchasing firearms. As the Duke Center for Firearms Law (which typically loves it when courts uphold gun control restrictions) elaborated at the time of the decision:

After determining that at least one plaintiff had standing to challenge the restriction, the panel outlined the Bruen framework and the threshold textual step of determining whether the regulated conduct is protected by the Second Amendment.  The panel found initially that the plaintiff with standing was part of the “people” with the right to keep and bear arms and that the plaintiff intended to purchase a protected “arm.”

 However, the panel then noted the Supreme Court’s assessment in Heller that certain types of regulations are “presumptively lawful”—and it placed this inquiry in Bruen “step one,” implying that at least some of these laws simply don’t touch on “keeping and bearing” and thus don’t implicate protected conduct.  

While noting that Heller’s “presumptively lawful” paragraph was dicta, the panel nevertheless found itself “bound by Supreme Court dicta almost as firmly as by the Court[’s] outright holdings.”

It’s an utterly absurd decision, given that the right to keep and bear arms is rendered meaningless without the the ability to acquire one. The same goes for ammunition.

Without ammo, a firearm is a paperweight, or maybe a club. Either way, it’s absolutely useless for its intended purpose. But the Tenth Circuit has taken the position that  “laws imposing conditions and qualifications on the commercial sale of arms are lawful extends equally to laws imposing conditions and qualifications on the commercial purchase of arms.” The court went on to say that even under the Bruen test Colorado’s law is likely to withstand constitutional muster because setting the age to purchase a gun at 21 is “consistent with both scientific evidence on brain development and historical regulatory practice.”

Other courts have held that laws prohibiting members of the political community from exercising their Second Amendment rights cannot stand, and though the age of majority might have been 21 in 1791 and 1868, today it’s 18, which makes these under-21 gun bans inconsistent with the national tradition of gun ownership.

If HB 1133 does become law I’m sure it will face a legal challenge, but unfortunately, the Tenth Circuit’s illogic holds sway in Colorado. As a result, anti-gun lawmakers can feel at least somewhat confident that the appellate court will green light their ammo restrictions just as it’s allowed the ban on under-21s buying guns to take effect.

Let’s Understand What Maryland, Baltimore’s Lawsuit Against Glock is Really About

Glocks are among the most popular handguns in the country. They’re priced decently, run reliably, and just plain work. Police trust them as do numerous armed citizens. They’re everywhere.

And that bothers a lot of people. Now, though, Glock is being sued by the city of Baltimore and the State of Maryland, with the help of Everytown for Gun Safety, and let’s talk a bit about what’s really going on here.

First, let’s get into the official word.

In an attempt to keep fully automatic guns off the streets, Baltimore and Maryland authorities Wednesday sued Glock, the maker of some of the best-selling handguns in America. The lawsuit demands Glock take steps to prevent its guns from being modified into machine-gun-like weapons capable of firing 120 rounds in one minute.

Small, easily installed devices known as “auto sears” or “switches” that are growing more common have terrified law enforcement because they enable high-powered violence not seen since 1934, when Congress banned machine guns after their prominent use by mobsters.

But police statistics show the number of “modified Glock” shootings is on the rise, including an incident near a Baltimore YMCA in March in which a woman’s car was hit 18 times, and police found 41 shell casings nearby. In Philadelphia last year, eight high school students were shot in one spray, including a 16-year-old who was hit nine times. In Memphis in April, a police officer was killed and two other officers wounded in a firefight with two teenagers, one armed with a modified gun.

The lawsuit, filed in Baltimore City Circuit Court, is the first to test Maryland’s new Gun Industry Accountability Act, passed by the General Assembly last year to create liability for gun manufacturers and possibly circumvent an earlier related law. The Maryland lawsuit mirrors others filed in Chicago, Minnesota and New Jersey in recent months.

But here’s the problem: Glock doesn’t make the switches. They didn’t design them. They didn’t have anything to do with them.

Further, they’re illegal to make or possess–at least if you’re not one of the handful that has a transferable switch that was made before 1986 and is registered with the ATF. People are getting them left and right, but they’re not doing it lawfully.

What at least some are claiming is that Glock hasn’t redesigned its reliable handgun so it can’t accept a switch.

Yet they don’t punish Toyota because someone might modify one of their cars and circumvent emissions controls or something. Why would they?

But this isn’t really about full-auto switches or even Glock.

No, this is about making it as expensive as possible to be in the firearm industry and to offer products to the civilian market. Right now, this is the angle of attack they’re taking, but it will not end there.

The federal Protection of Lawful Commerce in Arms Act was created specifically to stop these kinds of nuisance lawsuits aimed at the gun industry, particularly when they’re being attacked for the actions of a third party. That’s what’s happening here. They’re trying to pretend it’s Glock’s fault and to get them to stop selling their guns in Maryland, but does anyone really think that would do any good?

It’s not like the people putting switches on their guns are going to suddenly decide they don’t want Glocks because they’re not sold there.

They’ll just get them from somewhere else.

But if enough states do it and enough companies get sued, they’ll either go out of business or just stop selling to private citizens.

You don’t need to control guns if there are no guns for anyone to buy, after all. That’s what this is really about. That’s the long game at work with anti-gunners, and they’re using anti-gun states to try and do it.

Make no mistake. Glock has done nothing wrong.

These two governments just don’t like the right to keep and bear arms.

Firearms Policy Coalition
LEGAL ALERT: Maine federal judge issues preliminary injunction against the state’s 72-hour firearm waiting period. storage.courtlistener.com/recap/gov.usco

“Though [Attorney General] Frey concedes that the Constitution makes inviolate a right to keep and bear arms, he asserts that it does not protect the corollary right to acquire arms, which is a curious construction indeed.”
“Acquiring a firearm is a necessary step in the exercise of keeping and bearing a firearm. Any interpretation to the contrary requires the type of interpretative jui jitsu that would make Kafka blush.”

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Despite ATF’s Pistol Brace Ban Being Vacated, the Rogue Agency is Still Trying to Jail People Who Use Them.

Documents filed in an ongoing prosecution for illegal possession of a short-barreled rifle are raising new concerns about ATF’s enforcement policy concerning pistols with attached stabilizing braces. The government’s assertions of authority are truly breathtaking, claiming they can use the terms of an invalid rule to interpret the underlying statute and enforce it against U.S. citizens in felony prosecutions.

We have been reporting on the saga of ATF’s ill-fated 2023 administrative edict, Factoring Criteria for Firearms with Attached “Stabilizing Braces,” ever since the rule was proposed. The final version of that regulation reversed more than a decade of prior statements by ATF that attaching a stabilizing brace to a pistol did not create a short-barreled rifle (SBR) regulated under the National Firearms Act. Instead, ATF would use a series of vague and open-ended criteria to determine if the braced pistol was intended to be fired from the shoulder. But the rule provided no guidance to owners of such pistols how the criteria would be applied. Instead, ATF essentially claimed, “We’ll know an SBR when we see it.”

The pistol brace rule drew numerous legal challenges – including by the NRA – and several different courts found it defective on various grounds. A series of injunctions against its enforcement issued until, on June 13, 2024, a federal judge in Texas vacated the rule altogether. Owners of braced pistols breathed a sigh of relief as the threat of felony prosecution seemingly abated.

Last month, however, we reported on an alarming email to a gun owner sent by ATF’s Firearm Industry Programs Branch. The owner had asked ATF if attaching a stabilizing brace to a CZ Scorpion pistol would turn it into an SBR subject to the NFA. FIPB’s reply stated: “Federal law requires a pistol with an attached stabilizing brace or stock be registered as a short barreled rifle (SBR).”

The FIPB response also acknowledged that enforcement of ATF’s pistol brace rule was enjoined, and asserted, “While the appeal is pending, ATF is complying with the Court’s order.”

Yet ATF’s idea of “compliance,” according to the email, was to assert an even broader authority to treat ALL braced pistols as SBRs (not just ones fulfilling the “factoring criteria” specified in its rule), based on the agency’s reading of the underlying statutes.

After our reporting on that email, ATF quickly issued another statement, walking back the categorical statement about braced pistols. “ATF agrees that the statement ‘Federal law requires a pistol with an attached stabilizing brace or stock be registered as a short barreled rifle (SBR)’ is overbroad.” But the follow-up also continued to assert that ATF remained responsible for enforcing the underlying statutes.

“A firearm designed and intended to be fired from the shoulder that meets the statutory definition of a short-barreled rifle contained in the NFA must be made and transferred in accordance with the requirements of the NFA,” it stated. It did not, however, elaborate on how the agency would make this determination with respect to braced pistols or how owners of such guns might know whether ATF considers their firearms SBRs subject to the NFA.

Last week, however, NRA was made aware of a pending prosecution for illegal possession of a short-barreled rifle that answers this question in a shocking way. Documents the government filed in that case acknowledge ATF’s enforcement of the underlying statute continues to be informed by the terms of the agency’s illegal rule. The case is U.S. v. Taranto in the U.S. District Court for the District of Columbia.

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Yale Law Prof Backs Vance’s Claim: DOGE-Blocking Judge Violated Constitution

A Yale law professor says Vice President J.D. Vance is right: the federal judge who blocked the Department of Government Efficiency (DOGE) from exposing wasteful spending by the Treasury Department violated the U.S. Constitution.

On Saturday, Judge Paul Engelmayer sided with 19 pro-waste state attorneys general who filed a lawsuit against the President Trump-created, Elon Musk-led DOGE seeking to prevent scrutiny of how Treasury is spending taxpayer dollars.

Judge Engelmayer issued a temporary injunction preventing DOGE and Treasury officials from examining Treasure expenditures – and declared that the Democrats have a strong case for a permanent ban.

However, as Vice President Vance wrote on X.com (formerly Twitter), judges don’t have the legal authority to dictate the actions of generals, prosecutors and the president:

“If a judge tried to tell a general how to conduct a military operation, that would be illegal.

“If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.

“Judges aren’t allowed to control the executive’s legitimate power.”

In his response, Yale Law Prof. Jeb Rubenfeld agreed with Vance and explained how Judge Engelmayer violated the Constitution with his ruling:

“JD is correct about this, and his examples are exactly right. Where the Executive has sole and plenary power under the Constitution–as in commanding military operations or exercising prosecutorial discretion–judges cannot constitutionally interfere.”

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Following the ruling on Saturday, Musk called for Judge Engelmayer to be impeached for being “a corrupt judge protecting corruption.”

​Vance and Yale Law Prof​​

Leak Shows ATF Continues to Disregard Court Orders on FRTs

The ATF is still informing law enforcement agencies that FRTs are machineguns.

In a recent Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) leak released by AmmoLand News and Gun Owners of America (GOA), the government agency shared its fears about 3D-printed machinegun conversion devices (MCD), but not everything the ATF listed is an MCD.

The ATF included the Super Safe AK in its documents, claiming it was in a drop-in auto-sear (DIAS). The issue with that designation is that the Super Safety is not a machinegun or an MCD. It is a forced reset trigger (FRT), and the Bureau might be violating a court order by designating the device as a machinegun in its January 15, 2025, documentation.

Each time a shooter uses the AK Super Safe, they must pull the trigger. The statute definition of a machinegun is a firearm that expels more than one round per function of the trigger. For each function of the trigger, the Super Safety only expels a single round. It does not fit the definition of a machinegun as defined under the National Firearms Act of 1934 (NFA). The Supreme Court has already ruled that the ATF cannot change the statutory definition of a machinegun in the Cargill case.

The Cargill case involved a bump stock. SCOTUS found that since a shooter must pull the trigger between each round, a bump stock is not a machinegun. The Cargill case has been referenced in NAGR v. Garland, which challenged the ATF’s definition of FRTs as machineguns. In that case, the judge found that only one round is expelled per trigger function. The judge issued an injunction against the ATF from taking enforcement actions against the owners and manufacturers of FRTs. Yet, the ATF is still informing law enforcement agencies that FRTs are machineguns.

The ATF also refers to the AK Super Safe as the AK-DIAS. The AK-DIAS is not the same as the AK Super Safe. The AK-DIAS is a separate project and is a machinegun conversion device. It does convert a semi-automatic AK into a fully automatic firearm. The AK Super Safe engages the safety between every round making it impossible to fire automatically. It appears that the ATF is trying to conflate the two different devices which could lead to confusion amongst law enforcement, and the false arrest of Americans for possessing something that is completely legal.

This situation isn’t the first time the ATF rebelled against the courts or the White House. The ATF was criticized for disregarding an executive order demanding that diversity, equity, and inclusion (DEI) positions be eliminated. The order explicitly stated that those employees should be placed on administrative leave, and agencies should not try to hide them. The ATF did the opposite of the order. Lisa T. Boykin was the ATF’s “Chief Diversity Officer” responsible for implementing DEI at the Bureau. After President Trump issued the order, her title was changed to “Senior Executive.”

The ATF also recently came under fire for disregarding multiple court orders blocking the pistol brace rule. In that case, the ATF told a Gun Owners of America (GOA) member that their CZ Scorpion equipped with a brace would have to be registered with the NFA division of the ATF and pay a $200 stamp fee, or they could be charged with a federal felony. The ATF said that even though the rule was blocked, they could interpret the statute however they wanted. GOA forced the issue, and the ATF finally issued a retraction.

The situation is similar in this case. Even though the courts have barred the ATF from taking action against FRTs by a permanent injunction, they seem to be doing just that. Many view the Bureau as an out-of-control rogue government agency that ignores the law and does what it wants to do. This situation doesn’t instill confidence in those running the ATF, including the default head of the Bureau, Marvin Richardson.

Some have campaigned for Richardson to become the permanent head of the ATF, but this situation is the third time in a month that the ATF has disregarded a Presidential or court order. It leads many to wonder if Richardson is complacent or incompetent.

The Unexpected Silencer Lawsuit in the 9th Circuit Court of Appeals
Sanchez v. Bonta 24-5566

Many years ago, a wise, white-haired, old lawyer told me that lawsuits are not won because you have the law on your side. Lawsuits are lost by the guy who makes the first fatal procedural error.

That is why I spent well over a year preparing before I filed my California Open Carry lawsuit in November of 2011, and that is why my lawsuit is still standing today. I haven’t made a fatal procedural mistake. When the State’s attorney argued to the Court of Appeals that it could affirm the 2014 judgment of the district court on any grounds, the State’s attorney did not, and could not, point to any grounds by which the three-judge panel could have affirmed.

And so you can imagine my surprise when, after receiving an email PACER notification yesterday, I read the “briefs” and final judgment in this civil lawsuit challenging California’s silencer ban. The Order read:

ORDER FILED. Lisa B. Fitzgerald, Appellate Commissioner.

The court is inclined to appoint pro bono counsel to represent appellant in this appeal. Appellant may file a written objection within 14 days. If appellant does not object, the court will appoint counsel and set a new briefing schedule. [Entered: 02/03/2025 02:36 PM]

This is both impressive and curious.

The Order states, “The Court is inclined…” The Court is a three-judge panel that was picked long ago. Three-judge panels are formed long before they are assigned a particular case on appeal. Internally, two rosters of three-judge panels are formed. One roster consists of judges who will hear cases that will dispose of cases in unpublished memorandum opinions. The other roster consists of judges who will decide cases on the merits, via published, precedential opinions.

Each appeal goes through an internal screening panel of staff attorneys and judges. Most appeals are disposed of without any opinion being published because they suffer from some fatal procedural defect, such as filing a late notice of appeal.

Those cases that survive the initial screening process are assigned to a panel on one of the rosters.

In this particular case, it could have been assigned to a panel on either roster. But regardless of which roster the screening panel assigned it to, at least two judges think the case should be decided in a published, binding opinion.

That doesn’t mean the case will result in a published, binding opinion, but it is far more likely than not, given that the panel has, sua sponte, decided to appoint pro bono counsel to represent the Plaintiff-Appellant in his appeal.

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D.C. Federal Judges Join the Resistance
Overriding the President’s Control of the Department of Justice

U.S. District Judge Beryl Howell (Nice when PID is provided)

Some judges have seized upon a new form of resistance to President Trump’s policies and agenda — Refusing to dismiss criminal cases with prejudice in accordance with the President’s instructions to the Attorney General. Three of the eight federal district judges in D.C. who are on senior status,1 joined by one of their colleagues, have tried to undercut Presidential authority in this manner.

This article will consider one such case before Senior Judge Beryl A. Howell. Judge Howell has frustrated the President’s clear intent by refusing to dismiss indictments against Nicholas DeCarlo and Nicholas Ochs with prejudice. She did this despite the fact that, as she admitted, “It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.”

In her explanatory Memorandum and Order (“Memorandum”) Judge Howell not only refused to dismiss the indictments with prejudice but went out of her way to take gratuitous and irrelevant shots at the President and the pardons he granted pursuant to his Constitutional powers.

The Presidential Amnesty Proclamation

The date he was inaugurated, President Trump a signed a Proclamation that essentially granted amnesty for all “offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” The Proclamation addressed separately defendants who had been convicted and those who had been indicted but not convicted. Of those who had been convicted, they either had their sentences commuted “to time served as of January 20, 2025,” or were granted a “full, complete and unconditional pardon” for their offenses.

However, there were other defendants who were still subject to pending indictments for which there were not yet final convictions. For these, the President’s Proclamation directed the Attorney General “to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.” (bolded emphasis added)

The “dismissal with prejudice to the government” clause was intended to ensure that the government would never again be able to prosecute this category of defendants who were not yet burdened with a final order of conviction. It was the functional equivalent of a pardon. Judge Howell has now done everything she can to thwart that Presidential intent.

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