Yesterday, Judge Peter Sheridan (US District Court for New Jersey) moved to consolidate three Second Amendment-related cases at the behest of the State, including high-profile cases related to magazine bans and “assault weapons”.
Read the consolidation order here.
New Jersey Attorney General, Matthew Platkin, requested the consolidation of the three cases wherein the State is the defendant, in November of last year. The litigants in these cases, along with pro-Second Amendment groups, resisted that action arguing that the cases were dissimilar enough to be heard on their own merits.
After hearing arguments from both sides, Judge Sheridan consolidated the following cases for discovery purposes only: Association of New Jersey Rifle & Pistol Clubs (ANJRPC), Inc. et. al. v. Platkin; Mark Cheeseman, Timothy Connelly, and Firearms Policy Coalition, Inc. v. Platkin; and Blake Ellman, Thomas R. Rogers, and Association of New Jersey Rifle & Pistol Clubs (ANJRPC) v. Platkin. (The Cheeseman case relates to so-called “high-capacity” magazines that are currently banned in New Jersey).
In August of 2022, the Third Circuit Court of Appeals remanded the Association case back to the lower court using guidance from the Bruen decision with instructions to develop a deeper “historical inquiry” when deciding Second Amendment cases.
Judge Sheridan used that precedent, as well as Rule 42(a), to guide his decision to consolidate the three cases during the discovery phase. Rule 42, “…permits the Court to (1) join for hearing or trial any or all matters at issue; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay in action(s) involving common questions of law or fact.”
In the order, Judge Sheridan outlined eight areas where he believed the three cases had similarities that warranted consolidation (two out of the three cases, Association and Ellman are currently assigned to Judge Sheridan). Explaining his decision, he wrote, “The main goal in consolidating is to develop the historical evidence and discovery. The simultaneous production of same will improve efficiency and maximize judicial economy…”
The decision to consolidate is viewed negatively among the pro-Second Amendment community which is concerned that the topics, although related in a tangential way, are different enough in their own right that evidence could be confusing or prejudicial during a trial. Well known Second Amendment attorney, Dan Schmutter, has made the observation that using this criteria, every case involving the Second Amendment could be consolidated, and the never-ending addition of newly appended cases would result in a stalemate that would resolve nothing.
Judge Sheridan indicated he will revisit the consolidation order after the discovery phase to determine if the cases should continue to be consolidated for trial purposes, or if bifurcation should be considered. The judge also called out the State’s foot-dragging in extending the timeline of the case.
“…the Attorney General keeps moving the goalposts on the length of the delay necessary to develop the evidence and conduct discovery. My recollection is that in September, 2022, the Attorney General informally requested a few months; that timeframe grew to nine months in a submission in November, 2022; and now, there has been a rumor that he intends to ask for a year to complete discovery. (ECF No. 129). This simply cannot occur.”
If there is a silver lining to the consolidation order for the pro-Second Amendment community, it is that the order is currently only for the discovery phase, and that the Court is very aware of the State’s delay tactics.
