October 25, 2024 marked the one year anniversary of oral arguments before a three-judge panel at the Third Circuit Court of Appeals in the combined cases of Siegel v. Platkin and Koons v. Platkin. The cases challenged N.J. Public Law Chapter 131, the so-called “Bruen-response” law. That panel was hearing an appeal to the preliminary injunction entered by N.J. Federal District Court Chief Judge Rene Bumb on May 16th of 2023.
Since that original date, gun owners and permit to carry holders in New Jersey have patiently waited for a decision on the appeal.
When asked for comment, Bill Sack, Director of Legal Operations for the Second Amendment Foundation who, along with Firearms Policy Coalition, are the primary sponsors of the Koons case, shared his thoughts:
We here at SAF are as anxious as everyone else for the court to finally release its decision in Koons. The case is fully briefed and argued and the ball is now squarely in the. . . well. . Court’s court.
We also fully appreciate the patience and frustration associated with just how long these cases can frequently take to percolate through the various levels of the court system. But you can’t win if you don’t play, and we’re confident that our members’ determination and perseverance will win the day.
Now that a New Year has been rung in, how much more patience and perseverance will New Jersey residents need?
As with everything surrounding significant federal impact litigation involving major Constitutional questions, the answers are complicated but the key takeaways are:
- The Third Circuit is a good venue for this challenge and future Second Amendment challenges. There are some reasons to be hopeful for that landscape to improve in the near future, but there are some practical challenges to the Third Circuit (there is no perfect venue).
- While there are no strategically viable ways to accelerate this arduous process, it is likely that a sequence of dominoes need to fall for this case to be completed and the domino effect has been positive for gun owners. Gun owners are well positioned for the final stages of this battle.
- A final decision from the three-judge panel is likely to arrive soon, within the first few months in 2025.
Background of the Third Circuit Court of Appeals
The Third Circuit Court of Appeals handles appeals from federal district courts in the states of New Jersey, Pennsylvania and Delaware. The Third Circuit also includes the territory of the U.S. Virgin Islands. It has 14 total seats for active judges and currently has about 11 judges in semi-retired status. There is one current vacancy and one previously announced retirement.
Judge Joseph Greenaway, an Obama appointee, vacated his seat in 2023 and the Biden administration was unable to fill that position. Judge Kent Jordan was appointed to the Third Circuit by George W. Bush and announced his retirement which will take effect on January 15, 2025. President Trump will likely move to fill both of those vacancies fairly quickly.
There are currently seven judges at the Third Circuit appointed by Republicans, including Chief Judge Michael Chagares who was appointed by President Bush in 2006. There are six judges on the court appointed by Democratic presidents.
When the dust settles on those upcoming two appointments, that balance will shift to eight Republican appointees versus six Democratic appointees.
In the current smaller conservative majority, the Court has issued several favorable rulings and opinions in en banc Second Amendment cases.
This is critically important for gun rights nationally (a circuit court willing to consistently apply the Heller and Bruen framework that has appellate jurisdiction over states with expansive gun control regimes). This will be essential to creating splits among the various circuits, a condition needed to increase the odds of these cases reaching the Supreme Court.
The Fifth Circuit is arguably the most conservative circuit in the U.S., but the Texas legislature passes very little gun control, thus offering few opportunities to challenge laws to contrast against circuits like the Ninth (California) or the Second (New York). A Third Circuit willing to more faithfully apply Heller and Bruen would have significant implications for the national fight to preserve a fundamental right.
Some Practical Considerations Regarding the Third Circuit
From a practical point of view, while the Court composition is likely favorable for Second Amendment cases, the Third Circuit has a unique legal specialization. The Third Circuit includes Delaware. Delaware is the domicile of choice for incorporating businesses in the U.S. While the Third Circuit is geographically small, an exceptionally high volume of major corporate law cases flow through that circuit. Second Amendment cases are outside of that wheelhouse, so to speak. For context, roughly two-thirds of the constituent companies in the S&P 500 index are domiciled in Delaware.
Second Amendment cases will always be unfamiliar territory for a collection of judges with a great deal of expertise in one area of the law.
In summary, this is a circuit that is favorable to Second Amendment cases that will want to get the law right on these cases, but will need to do its homework every time. The Third Circuit hears approximately 3,000 cases per year. And they may hear only two or three cases per year involving the Second Amendment (for context the 9th Circuit Court of Appeals is the largest circuit geographically, has 29 active judges and hears approximately 8,000 cases per year).
Current Status in Koons/Siegel
It has been a little over 19 months since the appeal was filed in the Koons/Siegel cases, and, as discussed above, a little over a year since oral arguments. For the many gun owners in New Jersey, this has felt like an eternity.
The median time for a non-criminal appeal at the Third Circuit is approximately 11.5 months. Does 19 months mean that the Court is dragging its feet in this case? Not necessarily.
Mr. Pete Patterson is a partner with the Washington D.C. firm Cooper & Kirk, the firm representing the plaintiffs on the Koons appeal. Mr. Patterson represents plaintiffs on numerous appellate and Supreme Court Second Amendment cases. As some context, he shared, “I argued a non-violent felon [Second Amendment] case (Zherka v. Garland) in the Second Circuit on May 8, 2023, and that case still hasn’t been decided.”
There are examples of non-Second Amendment cases taking as long as seven years to be decided at the circuit court level. To be clear, that 7-year wait is an obvious outlier and while there are several likely mitigating factors as to why the Court in Koons and Siegel has exceeded the average wait time, there is also some hope that resolution is in sight.
So what are some of the likely mitigating factors?
The obvious first explanation is that the questions presented in Koons and Siegel are novel and complex Constitutional questions. There is a stark difference between major impact litigation and the mundane civil cases these courts hear. Impact litigation usually involves significant legal questions seeking to establish and build upon a nationwide body of jurisprudence as compared to the more typical commercial or tort claims that would make their way to a federal circuit court. In most civil cases, the facts are complicated and often discovery is the most time-consuming and expensive part of the litigation process, and while lower courts can err on the application of the law to those complex facts, the legal questions put to an appellate court are typically narrower and unlikely to reach the Supreme Court.
For context, roughly 300,000 civil complaints are filed in federal district courts per year, roughly 20,000 non-criminal appeals (~six percent of district court civil cases) are brought to all circuit courts of appeal per year in the U.S., and the Supreme Court hears roughly 70 cases per year including both criminal and civil cases.
In the realm of Second Amendment litigation, a rapidly evolving area of jurisprudence in the wake of Bruen, the legal questions in these cases are complicated with sweeping national implications. And unlike the average corporate law case that the Third Circuit is conditioned to hearing (typical of those 2,998 other cases that the Third Circuit hears every year), cases like Koons and Siegel are very likely to make their way to the Supreme Court of the United States.
The Court here must wrestle with these complex questions, knowing well that the highest court in the land will likely ultimately weigh-in. In addition, there are several other cases percolating up alongside Koons and Siegel at the Third Circuit, one of which is an en banc case that would have a binding, precedential effect on the three-judge panel that heard the Koons and Siegel oral arguments.
Range v. Garland, was decided en banc on December 23, 2024, and indeed the holding has some positive implications for the Koons/Siegel case. In addition, in the prior term, the Supreme Court had granted certiorari on several Second Amendment cases, notably Rahimi v. United States, which was the first major case before the Supreme Court since Bruen.
The panel in Koons and Siegel has now had ample time to consider Rahimi and now at least several weeks to consider Range (and, in fact all three of the panel judges in Koons/Siegel joined in the concurring opinion on Range). What else might the panel be waiting for? Lara v. Paris is another pending case before the Third Circuit, sponsored by the Firearms Policy Coalition and the Second Amendment Foundation. Lara was a pre-Bruen challenge to Pennsylvania’s prohibition on the issuance of carry permits to 18 to 20-year-olds. That case was originally before the Third Circuit in 2023, and appealed to the Supreme Court in 2024. The Supreme Court granted cert, vacated the lower court ruling and remanded the case to be reconsidered in light of the Rahimi decision.
The Lara case was argued before a panel that included Judge Jordan who, as discussed above, had announced his retirement to take effect on January 15th, 2025. In order to avoid an arguably unnecessary rehearing of that case, Lara will likely be decided very shortly, prior to Judge Jordan’s retirement. The panel in Koons/Siegel could be waiting for that opinion, which while not directly binding on the Koons/Siegel panel, would have some weight.
Against this backdrop, the panel in Koons/Siegel consisted of Judge Cheryl Ann Krause, an Obama appointee, Judge David Porter, a Trump appointee and Judge Cindy Chung, a Biden appointee. While, on paper, this panel is less favorable, even among the two Democratic appointees, there are likely areas of concurrence and areas of disagreement among the panel. There is likely going to be a lengthy majority opinion and a lengthy dissenting opinion being prepared, all in light of the evolving case law moving concurrently through various stages at the Third Circuit.
The final mitigating factor relating to the amount of time being taken by the Court to consider this appeal is the status of the case vis-a-vis the parties, namely the most pernicious parts of the law are enjoined, the lower court showed some deference to the state legislature and so the parties are arguably in a fair position. This means the Court can take its time to do its work here. This also means that emergency actions to accelerate the timing of the case would be inappropriate.
One of the parties could, for example, make an application for a writ of mandamus from the Supreme Court which, if granted, would compel a lower court to, for example, carry out an administrative task when it is otherwise unwilling to do so in a timely fashion. However, the standards for such an extreme measure are very high. It would be difficult to establish that the Third Circuit is acting in bad faith in light of the broader landscape and the complexity of the questions at issue.
In addition, the Supreme Court has made clear its stance on intervening in mid-stage proceedings in the lower courts (an interlocutory procedural posture). Justice Clarence Thomas himself emphasized this fact in the recent batch of Illinois “assault weapon” Ban cases that were appealed to the Supreme Court in the last term from a preliminary injunction stage before the Seventh Circuit. The Supreme Court almost universally wants only to review cases decided on the merits with a fully developed case record.
Is Koons/Siegel a Cautionary Tale on Preliminary Injunctions
The extraordinary amount of time being taken in the Koons/Siegel cases (as with many post-Bruen cases) may lead to some future debate among practitioners on whether there is strategic value in seeking preliminary injunctions in Second Amendment challenges. One might argue that, in certain cases, it may make more strategic sense to move as quickly as possible to a final merits-based decision in a lower court rather than seek temporary restraining orders or preliminary injunctions at all.
However, the Koons and Siegel cases were filed within minutes and hours of signing of Chapter 131 into law by Governor Phil Murphy. The most egregious parts of the law showed such a clear and obvious disregard for the Supreme Court’s holding, that there was little choice but to seek an immediate halt to the law’s implementation. New Jersey gun owners were and are still better off for it. In this instance, there was little debate to be had as to whether to seek a preliminary injunction.
With Rahimi and Range now settled, and with Lara likely to be settled within the next few weeks, it is not idle speculation to think that a final decision Koons/Siegel will come down in the first few months of 2025.
Summary
Impact litigation involving significant, complex Constitutional questions is a long and arduous project. The case record that has been developed thus far in Koons/Siegel includes thousands of pages of briefs and an extensive collection of lengthy court hearings. The case is only roughly in the fourth or fifth inning of a nine-inning game. Primary counsel on the appeal for the Koons plaintiffs is Cooper & Kirk and for the Siegel plaintiffs, Clement Murphy. Cooper & Kirk is one of the most premier law firms in the nation in Constitutional cases (among many of their other practice areas). And Paul Clement of Clement Murphy successfully argued the Bruen case before the Supreme Court while a partner at the law firm Kirkland Ellis.
Gun owners in New Jersey are extremely fortunate to have the brightest legal minds in the nation handling this case and equally fortunate that organizations like the Firearms Policy Coalition, the Second Amendment Foundation, and the Association of New Jersey Rifle and Pistol Clubs are able to fund the hundreds of thousands of dollars in legal fees necessary for each and every one of these cases to protect our rights. All of that is only made possible with the steadfast, grassroots support of passionate gun owners across the State of New Jersey and the nation.
And, of course, I hope that you will continue to support our work at New Jersey Firearm Owners Syndicate.