A gag inducing opinion from a rogue court.
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:
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.
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.
I AM NOT A LAWYER.
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.
—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 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 rights.—id. at 6 quoting Baird quoting Riley’s Am Heritage Farms v. Elsasser.
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 arms.—id. 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 5078.—id. 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.
—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.
—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 purview.—id. 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.”
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