B.L.U.F.
Judge David H. Urias has granted a TRO staying the power grab in New Mexico by their governor.
(700 words)
Steps in a suit:
- File the Complaint requesting an injunction: Sep 9, 2023
- Request A Temporary Injunction while paper work is filed: Sep 9, 2023
- Briefings filed: Not done
- Hearing on the motion for TRO: Sep 13, 2023
- Briefings, Motions, and cross motions for a preliminary injunction
- Hearing on the preliminary injunction
- Briefings, Motions, and cross motions for Summary Judgement
- Hearing on the motions for Summary Judgement
- Briefings, Motions, and cross motions for injunctive relief
- Hearing on the merits for injunctive relief
- Court issues opinion
At any point where the judge issues or denies a TRO, Preliminary Injunction, a Summary Judgement, or a finding, the losing party can appeal. Once the appeal is made, the case is on hold until the Circuit court issues their opinion. Once the Circuit court issues their opinion, the case will go back to the district court OR the losing party will appeal to the Supreme Court.
The Judge issued the TRO today, the Sep 13, 2023.
—ECF No. 11 National Association for Gun Rights v. Grisham, No. 1:23-cv-00771 (D.N.M.)
These are the standard requirements. Interestingly, the judge decided to address the likelihood of success on the merits first. Most judges do that last. They generally seem to want to get the technicalities out of the way first. Moreover, if they are going to rule against the TRO, it is easier to justify on a technicality than on the merits.
Plaintiffs have shown a likelihood of success on the merits that their Second and Fourteenth Amendment rights to publicly carry a firearm for self-defense will be violated if the PHO remains in effect.
—id.
The court then addresses “irreparable harm”.
Plaintiffs have shown a likelihood of success on the merits that their Second and Fourteenth Amendment rights to publicly carry a firearm for self-defense will be violated if the PHO remains in effect.
and The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
—id.
Having acknowledged that the Supreme Court hasn’t addressed if a Second Amendment infringement is irreparable harm, the court goes on to quote the Supreme Court in asserting that the Second Amendment is not a second class right.
Moreover, he does call it an infringement. This judge is not pussyfooting around.
The court next addresses the question of public interest. When granting a TRO, the court needs to evaluate if the granting of the TRO will adversely affect the public interest.
As the Tenth Circuit has stated, “it is always in the public interest to prevent the violation of a party’s constitutional rights[.]
—id.
For the final requirement for a TRO, the balance of equities most favor the plaintiffs. Here the judge just repeats himself. It is a violation of a constitutionally protected right. That places the balance squarely in favor of the plaintiffs.
This TRO is effective as of 2:55PM September 13, 2023, until the court has ruled on the Preliminary Injunction. This means that if the state tries to delay the hearing, it doesn’t harm the plaintiffs.
In addition, this is a complete injunction on the PHO. Not just for the plaintiffs. EVERYBODY.
The court has also ordered that the hearing on the preliminary injunction will be held on October 3, 2023.
From what I understand, the AG for NM said he wasn’t going to defend the gov’s unilateral declaration so it wouldn’t surprise me if they didn’t show.
This is great news! The 2nd is finally being treated like the civil right it is.
The actual TRO Hearing was live streamed (fairly unusual for a federal district level court?). Probably because of the momentous nature of suit? Now to find a copy of that.
Someone over at TTAG was posting running commentary – apparently this was live streamed.
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The impression I got was that the judge did want to rule for MLG, but just couldn’t find a way to do so. There was someone there, apparently, answering for MLG and the state, but no indication of who it was. In any case they didn’t have a lot to work with.
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I’m not knocking the decision, especially from a D-appointed judge. But it’s not “friendly ground.”
After nineteen months on the job after Biden appointed him, this Albuquerque native son and former ACLU activist lawyer, as a District Judge, gets his face in the national limelight. Hmmm, very interesting.
It would be interesting to understand why summary judgment could not have been granted here, given that the case seems open & shut.
From the perspective of the court system, why?
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In a case, such as this, the goal is to get the right outcome while redressing the harm being done. From a practical view, it is not relevant to anybody if the process is TRO, Preliminary Injunction, and Injunction. The harm has been halted. Nobody’s Second Amendment rights are currently being infringed by this EO, PHO. It doesn’t matter how long it takes to reach a final ruling.
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The next hearing is for the Preliminary Injunction. I expect the plaintiffs to request a Summary Judgement at that point. Which would mean that the Preliminary Injunction step would be skipped.
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My bet is that the court is hoping that the Governor or Legislature makes the case moot before he has to stick his neckout.
Awa, my reasoning is that a TRO means “right now it looks bad but the court is keeping open the possibility that the bad guys could come up with an excuse for reversing the order”. Conversely, a summary judgment says “you’re wrong, you’re definitely wrong, and that is the final judgment of this court”. The effect is roughly the same; the way it comes across is different.
IANAL so I don’t know if it makes a difference in how appeals are done or how hard it is to get the decision set aside in appeal.
AWA has a good point. This hearing was for a TRO only.
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It would not be fair to issue a final decision without both sides (and friends of the court) to fully form and file their arguments and counter arguments.
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The judge could be overturned on procedural grounds and told to do it over if he does not give both sides a full and fair hearing on the (IMO) facially illegal and unconstitutional public health order.
Saturday afternoon update!
She is at it again!
https://legalinsurrection.com/2023/09/new-mexico-governor-amends-gun-carry-ban-to-parks-playgrounds-despite-temp-restraining-order/
Can the judge demand her and her puppet, Patrick Allen report to his court room where the judge can explain personally and in great detail how she is violating the TRO?