Current Status of 2A cases from General Counsel Pete Serrano:
As the general counsel of the organization, I’d like to assure you that our focus remains on protecting constitutional rights, and the right to Bear Arms is preeminent in our litigation. Presently, we have 4 pending firearms matters, and I believe that our court dates on two of them are ahead of the curve compared to other similar litigation. Here’s a break down of our current Right to Bear Arms litigation:
SB 5078 (>10 round capacity magazine ban)
Brumback v Ferguson (federal court, Eastern Dist. of WA). This case was filed July 2022, and our Motin for Preliminary Injunction was heard on November 23, 2022. The Judge issued an order in the matter denying our Preliminary Injunction on September 25, 2023, and she required us to put schedules for future briefing together. SMF’s approach was to get the next hearing (Permanent Injunction) before the court ASAP, with a request that the motion be heard in February 2024. The State wanted to push it out until December 2024. Earlier this week (October 30th), the Judge issued requiring all briefing to be submitted to the court by April 2024, with a hearing date of May 21, 2024. We will get the scheduling order on our website along with the September 25th Order.
Washington v. Gator’s Guns (State Court Cowlitz County). This case has had interesting evolutions as it started with the State issuing a Civil Investigative Demand (a CID is a fact-finding tool available to the Attorney General where he asks questions and you answer under penalty of perjury) to Gator’s, requiring it to certify the number of the prohibited magazines since July 2022. Gator’s with our assistance, challenged the CID, including the constitutionality of SB 5078. Subsequently, the State dismissed the CID and filed suit against Gator’s for allegedly violating SB 5078. SMF/Gator’s refused to drop its challenge to the CID, so we had a hearing on the challenge to the CID in October. The Court determined that the CID challenge was moot (dead), but that before ANY briefing on whether Gator’s violated the law, the Judge wants to know if SB 5078 is constitutional, and that’s the only question before the court at this time. We were supposed to have a schedule for the briefing and hearing on the constitutionality of SB 5078 to the court by now, but, again, the State wants to stall until at least May 2024, whereas SMF/Gator’s is pushing to complete briefing and have a hearing on the constitutionality of SB 5078 by the end of 2023 or early January 2024. We have a hearing on the proposed scheduling set for 11/8/23.
HB 1240 (“Assault weapons ban”)
When the Judge in Thurston County denied our request for preliminary injunction, we filed a motion for discretionary review in the WA Supreme Court, which was filed on 10/13. The State will Answer our motion on 11/5, and we will have an opportunity to reply on 11/29. The Court will decide whether it wants to take the case in December (tentatively scheduled for 12/6). If the court denies the Motion, we will be back in Thurston County, briefing the matter ASAP. If the Court takes it, we’ve moved the case to the WA Supreme Court within months of filing the case, which is a very expedited pace.
HB 1705 (“Ghost Guns ban”)
This case was filed in Stevens County and the State moved it to Thurston County. We challenged that move and sought appeal by the Washington Court of Appeals (Division III). We briefed the issue, noting that the case belongs in Stevens County for several reasons, including the fact that the plaintiffs reside there and that any enforcement of the ban against the plaintiffs would have to occur in Stevens Co., regardless of which law enforcement agency would undertake such enforcement action. We should have a decision from the Court Commissioner on whether the challenge to moving the case to Thurston County will remain with the Court of Appeals within the next couple of weeks. Once we know whether the court will hear the matter in full, we will be able to take the next step in the case (i.e., either litigate the constitutionality of HB 1705 in the court of appeals or in Thurston or Stevens County).
Here are a few talking points on Gator’s, Guardian Arms and Does:
- The State issued a Civil Investigative Demand requiring information on whether Gator’s sold LCMs in July 2023; Gator’s sued challenging the information sought in the CID and challenged the constitutionality of SB 5078 on its face and as applied;
- The State withdrew the CID then sued Gator’s and has sought discovery;
- Hearing on 10/16/23 in Gator’s challenge to the CID requiring information on whether Gator’s sold LCMs;
- The State claimed Bruen and the 2A are “inapposite” and have “zero application” as only the state cases matter—the Judge didn’t like that;
- The Judge was trial judge in Jorgenson and understands its factual and legal limitations;
- The Judge consolidated the cases, so we’re now proceeding in the State’s case in chief, but the sole question before the court at this time is whether 5078 is facially constitutional—we’re working w/ the State to develop a briefing schedule on the question of constitutionality; and
- The judge asked some great questions like whether brandishing a firearm was an act done in self defense. The state’s response was that you can’t brandish an LCM in self defense—this was in response to the State’s claim that 2.2 shots are fired in self defense. IF YOU CAN THINK OF SOMEONE WHO COULD BE AN EXPERT ON GUN PARTS, ETC., THAT MIGHT BE HELPFUL IN THIS CASE. We can distinguish how a firearm properly operates with its magazine, etc.
***Side note: the briefing we develop, including expert witnesses, etc., will be used in Brumback. Of course, we will focus on WA const., here, but the facts and expert testimony will remain largely the same.
- We filed a Motion for Discretionary Review with WA Supreme Court—I’ve attached the Court’s scheduling order, which provides that the Supreme Court Commissioner will hear/consider the matter on 12/6/23. Briefing is attached, too;
- Three basic questions, here: (1) Whether the Thurston County Superior Court erred in determining that “assault weapons” as defined in SHB 1240 are not “arms” for purposes of Wash. Const. art. I, § 24; (2) Whether the Thurston County Superior Court erred in utilizing intermediate scrutiny; (3) Whether violation of a fundamental constitutional right constitutes irreparable harm—Bruen was part of our briefing, so it may answer some of the questions posed in Gator’s case, too.
- While this is a little more tenuous for the public, this has SIGNIFICANT impact on all gun rights cases as it could tip the Court’s hand to the application of Bruen, which the State always denies in these challenges in state court.
- The State is pushing through discovery, which we believe is largely off-base. We’re likely going to see that consume more time than we want to use, but it’s part of the game.
DOES 1, 3, 5 v. State (HB 1705)
- Was briefed to Div. III Ct. App. challenging the State’s removal of the case from Steven’s Co to Thurston. We’re still awaiting a decision but anticipate it should be forthcoming any time soon as arguments were held on 9/7.