The Judge Said What?
A gag inducing opinion from a rogue court.
(2900 words)

Who is Dimke

Dimke graduated from Pepperdine University in 1999 before entering Vanderbilt University School of Law, where she graduated with a J.D. in 2002. From there she went to clerk for Alan B. Johnson, a Reagan appointee. Likely because he did his undergraduate work at Vanderbilt. From there, she moved on to clerk for Richard C. Tallman on the Ninth Circuit.

Tallman is a Bill Clinton appointee. His professional career starts in the government. He was a DoJ lawyer and then Assistant United States Attorney in Seattle. From there, he went into private practice, focusing on white-collar criminal defense.

According to Wikipedia, his notable opinion was:

Bull v. City and County of San Francisco, August 22, 2008. Tallman dissented on the issue of whether San Francisco jails could strip search those detained for minor, non-violent offenses, contending that they should be able to do so due to security needs: “When people are dying as a result of our errant jurisprudence, it is time to correct the course of our law.”

After clerking for Tallman, Dimke became a DoJ Trial Attorney, then an Assistant U.S. Attorney. From 2012 through 2016 she was the Assistant U.S. Attorney for the Eastern District of Washington.

In 2021, Biden nominated her as a Judge for the Eastern District of Washington.

This is a person who has spent her entire career working for the government. As a government lawyer, she gets to choose what cases she prosecutes. If she doesn’t think she can win in court, she can plead the charges down or get some other “win” without having to go to trial.

Her job for all those years was to get wins for the state.

Steps To a Win

The plaintiffs (good guys) file a complaint. In the complaint, they charge the defendants of doing something wrong. A magazine ban in this case. They state if it is an “as applied” or “facial” challenge. “As applied” means that it is only about the plaintiff. They are not asking that the ruling apply to anybody else.

A facial challenge means they are attacking the law. If they are successful, the law will be enjoined, halted.

As part of their complaint, they have to state what remedy they expect the court to grant them. If there is no remedy, then there is no case.

Once the complaint is filed, the process moves forward. The first step is often a request for a Temporary Restraining Order. A TRO is short-lived, generally only 14 days. The TRO can be extended by another 14 days. If both parties agree, the TRO can last longer.

After the court rules on the TRO, the losing party can appeal to the circuit court. The case is then put on hold until the appeals court rules. It is uncommon for the circuit court to hear an appeal at this stage. The case isn’t “ripe”.

Next, the plaintiffs request a preliminary injunction. The goal is to have the TRO last until the court issues a ruling on the request for preliminary injunction.

While all of this is going on, the defendants will be attempting to get the case dismissed for any reason possible. They will frequently start with standing.

The parties will also file for summary judgement. A summary judgement is a complete win before the case is heard on the merits.

After the court rules on the preliminary injunction, the losing party can appeal the decision. The court will sometimes grant a stay pending the circuit court deciding if they want to hear the case. If the circuit court would like to hear the case on appeal, the circuit court can then issue a “stay pending appeal” or a preliminary injunction, pending appeal.

The circuit court can then remand the case back to the district court. The case will then proceed to trial on the merits. There may or may not be any oral arguments.

Once the court issues its finally judgement, the loser can appeal to the circuit court.

It is possible for a case to go to the appeals court three times (or more) during this entire process. And it generally takes more than a year.

In Duncan v. Bonta, that was a final opinion. In Brumback v. Ferguson it is only a ruling on a preliminary injunction. This is not final. Arguments for the preliminary injunction were heard in November 2022.

Legal Standard

This is not simple for a non-lawyer. I want clear definitions, and this is not clear. The courts seem to have been using an ad hoc methodology until 2008. In 2008, the Supreme Court decided Winter which set down the rules on granting a Preliminary Injunction.

Every case I’ve read that has a preliminary injunction cites to Winters. They all state there are four separate prongs to the decision. In my reading of Winter there are only three.


This is where the court tells everybody that in order to grant a preliminary injunction, the plaintiffs must be likely to succeed on the merits of the claim, that they will suffer irreparable harm absent the preliminary injunction, that the balance of equities tips in their favor, and that the preliminary injunction is in the public interest.

That is the order in which the factors should be processed. If any of them fails, the injunction should not be granted. These are called the Winter factors. If the plaintiffs are likely to succeed on the merits, the next query is the amount of harm if the injunction is not granted.

The Supreme Court, and the Ninth Circuit, have said that any time a core Constitutional right is implicated, it is great irreparable harm, thus if the plaintiffs are likely to win on the merits, the second factor is met. That leaves only the balance of equities and in the public interest.

This is not quite what I read in Winter.

While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet.
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249, 16 (2008)

Here it seems to say that this is a single prong. A balancing of what would be best for the public.

The Supreme Court and the Circuit courts say that the order of addressing the Winter requirements are as stated. Merits, harm, balance, and public interest. The more harm to the individual, the less the public interest gets. The more likely a win on the merits, the less requirement for harm and the less the public interest gets.

The issue is that a court can change the order. If the court starts with interest balancing, they can avoid deciding on the merits. This is a rogue methodology. If the question is of core constitutional rights, such as First or Second Amendment protected rights, then the harm is irreparable. This means that the balance of equity is strongly in favor of the plaintiff.

The panel reversed the district court’s denial of Appellants’ motion for a preliminary injunction seeking to enjoin enforcement of California Penal Code sections that impose criminal penalties for the unlicensed open carry of a handgun, and remanded with instructions.

The panel held that the district court abused its discretion by applying an incorrect legal standard to deny Appellants’ motion for a preliminary injunction. Instead of analyzing the first factor set forth in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)—whether Appellants were likely to succeed on the merits of their claim—the district court erroneously determined that because the public interest and balance of harms disfavored the issuance of a preliminary injunction, it was not necessary to assess Appellants’ likelihood of success on the merits. Analysis of the first Winter factor is centrally important where a plaintiff alleges a violation of a constitutional right, including the individual’s right to carry a handgun for self-defense outside the home under the Second Amendment. Pursuant to N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), a government may regulate the manner of that carry only if it demonstrates that the regulation is identical or closely analogous to a firearm regulation broadly in effect when the Second or Fourteenth Amendment was ratified.
Mark Baird v. Rob Bonta, No. 23-15016, slip op. at 2 (9th Cir.)

This is the Ninth Circuit telling the district court, go back and do it again. Look at the merits first. Only after you have made a determination on the merits do you go on to the other prongs of granting a preliminary injunction.

Quoting Dimke’s opinion “When … the nonmovant is the government, the last two Winter factors ‘merge.’” Id. (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).ECF No. 59 Brumback v. Ferguson, No. 1:22-cv-03093 (E.D. Wash.) Which is what I figured out above.

The court goes on to state, via citations, that if it is a constitutional challenge, and the plaintiff is likely to succeed on the merits, the equity balance tips in their favor because it is Always in the public interest to prevent the violation of a party’s constitutional at 6 quoting Baird quoting Riley’s Am Heritage Farms v. Elsasser.

The Question

The plaintiffs assert that the question is:
whether [ESSB 5078] and its effective amendments to [RCW 9.41 et seq.] impairs and/or infringes upon the right of Washington citizens to keep and/or bear at 6–7

The court says that the question is procedural. This is a difference without meaning. The court is saying that she needs to be convinced that the plaintiffs are likely to succeed on the merits.

Under Heller the first question is whether the plain text of the Second Amendment is implicated. Next, is the arm in common use? If the answer to those two questions is yes, then the plaintiffs win.

This is not a Bruen case because we are dealing with an arms ban. Heller says that for an arms ban to exist, the arm must be both unusually dangerous and unusual. The court has ruled that 200,000 or more is in common use. If there are more than 200,000 in use, then the arm cannot be “unusual”.

It is Plaintiffs who seek a preliminary injunction. Therefore, it is Plaintiffs’ burden to demonstrate the plain text of the Second Amendment covers conduct prohibited by ESSB at 9 While true, this really begs the question. The state has made numerous statements regarding how important their ban is because of “mass shooters”.

That means it is arms related. The states with these magazine bans all put their regulations in the “firearms” section. They know this is a firearms ban. They are just looking for a way to avoid taking on the burden of proving a history and tradition.

The court then starts to work their way through the operative clause of the Second Amendment. First, by deciding that the plaintiffs really are a part of The People. Wow, I’m so impressed.

The court then goes on to cite the Ninth circuit court and the Supreme Court, all saying that the right to acquire arms is protected under the Second Amendment.

But given the lack of post-Bruen authority, and Bruen’s instruction that a court must interpret the text of the Second Amendment through the lens of history, the Court must insist upon a historical record demonstrating that the Second Amendment right to the manufacture, import, distribute, sell, or offer for sale of arms. 142 S. Ct. at 2130. The current record lacks such evidence; therefore, the Court cannot reach a conclusion on the subject. As the burden belongs to the Plaintiffs, the Court must find that the insufficiency of evidence and authority weighs against a preliminary injunction. At a future trial on the merits, a sufficient demonstration as to the intent of the Framers of the Second Amendment, rooted in history, may warrant a contrary finding. Bruen, 142 S. Ct. at 2130 n.6 (a court is “entitled to decide a case based on the historical record compiled by the parties.”).
id. at 13–14

Try to wrap your head around that one. This judge can’t figure out if the rights protected under the Second Amendment extend to the ability to acquire firearms. She claims she has to toss all previous findings to that effect because they didn’t apply the Bruen test.

This is part of the reason that I said that this is not a Bruen case, but instead a Heller case. When Heller was decided, the court laid out what was an arm and what was protected by the Second Amendment.

Plain text or History and Tradition

Heller set up a two-step process to determine if a modern regulation is constitutional, is the proposed conduct implicated with the Second Amendment. If so, is there a history and tradition of such a regulation?

When the Ninth Circuit looked at butterfly knives in Teter, they first asked, “is a butterfly knife an arm?”

They did not ask if it was dangerous, nor did they ask if it was unusual. They only asked if it was an arm.

Dimke conflates the question of “is it an arm?” with “is it an arm protected by the Second Amendment?” All of her citations have implications that the item is an arm and are questioning if it is protected. Big difference. If the item is an arm, then the second step is “is this arm in common use?” That’s it.

If this wasn’t an arms ban case, the second step would be upon the state to prove history and tradition. In all of these cases, the state works diligently to avoid taking on that burden.

Having just spent 6 pages talking about how to do the analysis, Dimke then shots herself in the foot.

These difficult and unsettled questions of law aside, Plaintiffs fail to demonstrate their likelihood of success on the merits for a far simpler reason. A magazine is a part of a firearm, rather than a “weapon[] of offence, or armour of defence,” or a “thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” See Heller, 554 U.S. at 581. On its own, it cannot be used to attack or defend; a magazine with increased capacity simply reduces the frequency of reloads required when discharging a firearm.
id. at 20

This dummkopf thinks that it is ok to ban a firearm part. No more firing pins for you. No more barrels for you. Those are only parts of a firearm, and not an “arm” in and of themselves.

It remains Plaintiffs’ burden to establish that the weapon at issue falls within the Second Amendment’s at 21 Emphasis added. Keep and bear arms … Isn’t a weapon an arm?

There was a time I wish was still here, when my young daughter looked up at me and asked, “Why, daddy?” I had to give her an answer that would satisfy her curiosity without swamping her knowledge base. I had to expect her to respond to any answer I gave her with, “But why, daddy?”

An expert in firearms looks this judge in the eye and says, “Magazines are arms. They are ammunition feeding devices which are an integral part of a semi-automatic firearm. Without a magazine, a firearm is reduced to a single shot firearm. In some cases, a firearm will not function without a magazine in place.”

Dimke responds with, “But why is it an arm?”

The plaintiffs point to different resources that establish the fact.

“But why is it an arm?” is all Dimke can say.

She then falls back on that time honored safety net of the weak, “But nobody has explicitly told me that magazines are arms. And I don’t trust the people who are telling me that magazines are arms.”

… The Court will not reduce the evidentiary rigor required for an injunction such that Plaintiffs may obtain one here by citing to articles found on the internet, without explaining their academic and scientific worth, or historic accuracy.

Further, Plaintiffs may not simply rely upon pre-Bruen case law to prove their case. See ECF No. 34 at 10-11 (citing cases from 2011 to 2017). While such authority may be of some persuasion, Bruen explicitly rejected the test applied by the circuit courts following Heller. See Alaniz, 69 F.4th at 1128. The gravity of the relief requested, and the uncertainty of prior authority in Bruen’s wake, demands a renewed analysis that rests upon a reliable evidentiary showing. The Court must insist that there be a historical record in order to make a determination on the meaning of the word “arms” as used in the Second Amendment. Specifically, whether “arms” includes magazines, or large capacity magazines. See 142 S. Ct. at 2130 n.6.
id. at 24

That “historical record” is documented in Heller


At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right. The instant decision is primarily the result of Plaintiffs’ insufficient evidentiary showing, and should not be read to preclude a contrary finding at a trial on the merits. It is pertinent to note, however, that no party, at this stage, has demonstrated a historical record adequately supporting their respective positions on the question of whether the Second Amendment covers large capacity magazines.
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)District of Columbia v. Heller, 467 U.S. 837 (2008)Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)Andrew Teter v. ANNE E. LOPEZ, No. 20-15948 (Court of Appeals for the Ninth Circuit)David L. Hudson Jr, Facial Challenges, (last visited Jun. 14, 2023)


District of Columbia v. Heller, 467 U.S. 837 (2008)
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
ECF No. 59 Brumback v. Ferguson, No. 1:22-cv-03093 (E.D. Wash.)
Andrew Teter v. ANNE E. LOPEZ, No. 20-15948 (Court of Appeals for the Ninth Circuit)
Mark Baird v. Rob Bonta, No. 23-15016 (9th Cir.)
David L. Hudson Jr, Facial Challenges, (last visited Jun. 14, 2023)
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By awa

5 thoughts on “Brumback v. Ferguson (E.D. Wash., 22-cv-03093)”
  1. Dimensions says magazines aren’t “arms” because they are “parts”, and thus not protected by 2A.
    Meanwhile, California requires a Magazine Disconnect Mechanism (MDM) on all pistols sold in the State.
    Taken together, Cali gun owners are one “parts” ban from owning expensive paperweights. And according to Dimke, that’s fine because magazines aren’t “arms”.

  2. Addressing Archer’s point, and awa’s point, the Duncan v Bonta Case, Judge Benitez footnote 75 is excellent.
    The better understanding is to consider the magazine as part of the gun. There is a federal law analog leading to the conclusion that a magazine is correctly recorded as a component part of the gun.
    The arms control export Act criminalizes the unlicensed export of firearms and their components. Firearm magazines come within that act because a magazine is useful only when used in conjunction with that end item. Its sole purpose is to load cartridges into the breach so they can be fired in this view.
    The magazine is a necessary component of a gun, which in turn would obviously fall under the text of the Second Amendment protection of arms. Uh large capacity magazines are not weapons in themselves says the state nor are they necessary to operate any firearm for self-defense? California residents who purchased new pistols in the last decade are probably surprised to hear that magazines are not necessary to operate a pistol.
    After all, another state law known as the unsafe handgun Act requires new semi-automatic pistols to have an integrated magazine disconnect mechanism in order to be sold to the public, a magazine disconnect-mechanism prevents a pistol from firing at all. Even if one round is left loaded in the chamber. If the magazine is not inserted into the pistol. The state mandated magazine disconnect mechanism thus prevents the operation of the firearm without its magazine.
    While rifles are not required to have a magazine disconnect mechanism, the state must concede that at least for semi-automatic handguns, the state deems unsafe firearms for self-defense will not function without a magazine. Modern magazines submit California are more like founding era cartridge boxes or ancillary equipment associated with soldiering that were not strictly necessary to fire a gun today. However, as pointed out above some semi-automatic firearms will not function at all without a magazine while others can fire no more than one round. As such, a magazine is an essential component without which a semi-automatic firearm is useless for self-defense. Therefore, a magazine falls within the meaning of arms.

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