Untangling Lawsuits

There are 2A lawsuits everywhere and it gets confusing as to where they stand and what the latest legal action means.  In addition, headlines are getting more and more deceptive and ‘journalists’ often don’t explain the situation well. (Perhaps because they don’t really understand it.)

Here are some helpful hints from a non-lawyer in non-legal-speak.  Of course, this is simplified and lawyers make their money arguing over the complexities.

A lawsuit can be filed against a government body to stop them from doing something.  Two examples: NY State was sued to stop the Concealed Carry Improvement Act (CCIA) from going into effect and the Trump administration was sued to stop them from deporting illegal aliens. 

It’s important to know that lawsuits challenge specific parts of a law or regulation and do not necessarily challenge all of the law or regulation.

These lawsuits can take years to settle, so the suers (plaintiffs) often ask for a ‘preliminary injunction.’  If granted, a ‘preliminary injunction’ will stop the government from enforcing their law / regulation while the lawsuit is actually being settled. (For instance, stop Hochul from enforcing the CCIA or stop Trump from deporting illegal aliens while the case is being settled.) 

Think of the request for a preliminary injunction as a separate lawsuit (even though technically they are not.)  Lawsuit one wants the government to be permanently stopped while lawsuit two wants the government stopped while lawsuit one is being decided. 

Lawsuit two - the preliminary injunction request - usually gets decided before lawsuit one, which makes things further confusing.

Lawsuit two - the preliminary injunction - can end up working its way through the court system and sometimes goes all the way to the Supreme Court of the United States. (SCOTUS)   

A judge is only supposed to issue a preliminary injunction if the judge believes (1) that there will be irreparable harm done if the order is not granted and 2) that the person seeking the order has a high probability of success on the merits and (3) the person seeking the order must have standing to raise the issue   The judge is supposed to use judgement but many (especially in NY State) seem to let their politics guide them.

Now, a few words about the court systems are necessary.

There are two separate court systems: NY State and the Federal government.  But they both consist of three levels. 

The lowest level is the trial level where the case is initially argued and the facts are established. 

The next level is an appeals level where the trial level loser can ask for a review of the case.  This level must accept all appeals made to it.

The highest level is also an appeals level.  (SCOTUS on the federal level.)  It has three paths it can follow:

(1) This level does not have to accept appeals.  If it does not accept an appeal, the judgement of the first appeals level stands and that is the end of the case. 

(2) This level can also refer the case back to the first appeals level with instructions; it does this because it wants all the issues entered into the records before it hears the case. 

(3) It can also agree to hear the case – usually months into the future.

TV talking heads and newspaper editorial writers (and anyone with an opinion on line) will often try to interpret what it means when SCOTUS refers a case back to the lower appeals level.  First, that is the commenter’s opinion and not fact.  Second, many are influenced by their politics and want to create a certain impression and often leave out – or bury – important facts.  Be wary of these interpretations.

Let’s look at a current 2A case as an example.  As of today, this is our understanding.  If you are paying attention to current 2A lawsuits, you may have heard about the Antonyuk v James case.  (James is Steven James who is the Superintendent of the NY State Police).

Antonyuk filed a lawsuit against the CCIA (lawsuit 1) and requested a preliminary injunction (lawsuit 2) so that the CCIA could not be enforced while lawsuit 1 is being heard.  All the following has to do with the preliminary injunction case (lawsuit 2).

The trial judge mostly found for Antonyuk and issued a preliminary injunction.

The appeals level court reversed most of the trial judge’s findings and found mostly that much of the CCIA could be enforced. 

Antonyuk appealed to SCOTUS

SCOTUS referred the case back to the appeals court with instructions to reconsider the case in the light of another SCOTUS decision.      

The appeals court decided that the other case did not impact Antonyuk and let their original decision stand.

Antonyuk went back to SCOTUS.

SCOTUS refused to hear the case so the appeals court decision as to the preliminary injunction stands.

What that means is that there now is an appeals level preliminary injunction stopping enforcement of a few parts of CCIA but most of the CCIA can be enforced by NY State.

However, lawsuit 1 to permanently stop CCIA will now be heard at the trial court level and it will work its way up through the system.  (Now you know why these cases cost thousands of dollars.)

The 2nd Circuit Court of Appeals (the appeals court below SCOTUS) covers all of NY State.  Decisions of this court apply to all of NY State but not to other circuits.  For example, the 1st Circuit could ignore the Antonyuk ruling and Antonyuk would not be enforceable anywhere but in the 2nd Circuit.  (A moot point since Antonyuk only applies to a NY State law.) 

And if you understand all that, an important monkey-wrench has now arisen.

According to Federal Rule of Civil Procedure 65(c), when someone asks for a temporary restraining order* or a preliminary injunction, they are supposed to put down a ‘security payment’ to cover the government’s costs if the restraining order is overturned.  This has been largely ignored.

An example: the ACLU asked a judge to issue an order demanding the return of planes deporting suspected Venezuelan gang members.  If this procedure had been enforced, the ACLU would likely have had to fork over enough money to cover the return of those planes and the detention of the suspects in U.S. facilities in the interim. That money would remain as bond, and the judge would return it to the ACLU if the ACLU ultimately succeeds in the lawsuit.  If the ACLU fails, it loses the money.

This could have a chilling effect on temporary restraining orders and preliminary injunctions as the suer (plaintiff) would want to be very sure they have a winning case.  (And it’s never a sure thing.)  Losing the case could cost hundreds-of-thousands or millions. 

If used, this procedure would primarily impact the much-discussed cases where trial level judges are issuing nationwide restraining orders against the Trump administration.  Currently, anti-Trump administration plaintiffs will ‘judge shop’ for likely sympathetic judges at the initial trial level and there are no consequences to the plaintiff or the judge if the judges rule based on their political beliefs rather than the law.  But if the plaintiff’s had to fund these ‘security payments,’ that would might stop many of these in-their-tracks.

But for 2A lawsuits, that would put an additional financial burden on these cases which are usually funded on a shoestring.  The government defending the law has bottomless taxpayer dollars to keep appealing and running up the tab.

*Temporary Restraining Orders usually last for only 14 days, maximum.