Grant v. Lamont

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT et al.

EDDIE PGlRaAinNtiTff,s JR., v. , Civil No. 3:22-cv-01223 (JBA) et al.

EDWARD M. LAMONT, JR., in his official capacity, , Defendants August 28, 2023 .

RULING ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs move for a preliminary injunction against Defendants in their official capacities that enjoins them from enforcing Conn. Gen. Stat. §§ 53-202a-f, 53-202h-j, and Conn. Public Act No. 23-53, § 23 (the “Challenged Statutes”) (Pls.’ Mem. for Prelim. Inj. [Doc. # 51]), arguing that the Challenged StDaitsutrtiecst ionff Crionlguem obnia t vh.e Hire lSleerc,o nd Amendment right to kNeeewp Yanordk b Setaart ea rRmifsl ea s& a rPtiisctuolla tAesds obcyi ation, Inc. v. Bruen, 554 U.S. 570 (2008) and inter alia 142 S. Ct. 2111 (Jun. 23, 2022).

Defendants argue that Plaintiffs cannot show a likelihood of success on the merits because the weapons Plaintiffs seek to possess are not protected by the Second Amendment and that the Challenged Statutes are consistent with this nation’s tradition and history of firearm regulation. (Defs.’ Opp’n to Mot. for Prelim. InNj.a [tDioonca. l# A 5ss9’n]. )f oBra Gseudn oRnig thhtiss, eCto aulr,t v’s. pLarimoro nrtuling on the preliminary injunction motion in NAGR , 3:22-1118(JBA), [Doc. # 85] (Aug. 3, 2023) (“ PI Ruling”) and for the reasons set forth below, the motion is denied.

nunc pro tunc, Plaintiffs’ motion to for leave to file excess pages [Doc. # 61] is granted but Plaintiffs are reminded that any motion to depart from the page limit requirements is to be I. Background A. Challenged Statutes Conn. Gen. Stat. §§ 53-202a-f and Conn. Gen. Stat. §§ 53-202h-j restrict ownership of certain categories of firearms categorized as “assault weapons”, which the statute defines both by naming specIidf.i c firearms and by outlining categories of firearms with certain features that qualify. The possession, sale, and transfer of those firearms is prohibited, and violation of the statute is a Class D felony punishable by a mandatory 1-year sentence, with a maximum of 5 years incarceration. Conn. Gen. Stat. § 53-202c(a); Conn. Gen. Stat. § 53a-35a(8). Distributing, transporting, importing, stocking for sale, advertising for sale, or gifting an assault weapon is a Class C felony, carrying a mandatory minimum of two years incarceration with a maximum of up to 10 years. Conn. Gen. Stat. § 53-202b(a)(1); Conn. Gen. Stat. § 53a-35a(7).

Previously, the statutes regulated only pistols, rifles, and shotguns; the term “other firearms” was commonly used to refer to weapons that did not meet the Connecticut statutory definition of either a pistol, a rifle, or a shotgun, and therefore did not qualify as an assault weapon. (Pls.’ Mem. at 5.) “Others” often use “pistol braces”, which attach to a person’s forearm to provide stability and are visually similar to shoulderI ds.tocks but which manufacturers claim are not meant to allow for firing from the shoulder. ( ) On January 31, 2023, the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published a rule clarifying that firearms equipped with “stabilizing braces” (also referred to as “wrist braces” or “pistol braces”) are now classified either as “rifles” or “short-barreled rifles” (depending on the length of the barrel) under federal law. (TRO Order at 2.) Individuals

D. Conn. Loc. R. 7. Further motions to depart from the page limits set in Rule 7 that are not owning these firearms may keep them under the ATF’s new rule but must register them with the ATF; however, the Department of Justice announced in an online public information session held on January 31, 2023 that ATF would not accept registrations from Connecticut residents because it viewed the previously categorized “others” as now meeting the definition of “assault weapons” under Connecticut law because of the ATF reclassification of such “others” as being types of rifles. (Pl.’s Mot. at 7.) However, on February 8, 2023, the Connecticut Department of Emergency Services and Public Protection’s Special Licensing and Firearms Unit released an official memorandum clarifying that despite the change in the ATF classification, it did not consider “others” to be assault weapons covered by the ban under Connecticut law. (Order Denying TRO [Doc. # 41] at 3-4.)

The classification of Connecticut “others” under Connecticut law changed on June 6, 2023, when Defendant Lamont signed into law Conn. Public Act No. 23-53, expanding the definition of “assault weapon” to include many of the weapons that were formerly defined as “others” if they meet the following criteria: (G) Any semiautomatic firearm other than a pistol, revolver, rifle or shotgun, regardless of whether such firearm is listed in subparagraphs (A) to (D), inclusive, of this subdivision, and regardless of the date such firearm was produced, that has at least one of the following: (i) Any grip of the weapon, including a pistol grip, a thumbhole stock or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; (ii) An ability to accept a detachable ammunition magazine that attaches at some location outside of the pistol grip; (iii) A fixed magazine with the ability to accept more than ten rounds; (iv) A flash suppressor or silencer, or a threaded barrel capable of accepting a flash suppressor or silencer; (v) A shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to fire the firearm without being (vi) A second hand grip; or (vii) An arm brace or other stabilizing brace that could allow such firearm to be fired from the shoulder, with or without a strap designed to attach to an individual's arm; (H) Any semiautomatic firearm that meets the criteria set forth in subdivision (3) or (4) of subsection (a) of section 53-202a of the general statutes, revision of 1958, revised to January 1, 2013, that was legally manufactured prior to September 13, 1994; or (I) A combination of parts designed or intended to convert a firearm into an assault weapon, as defined in any provision of subparagraph (G) or (H) of this subdivision, or any combination of parts from which an assault weapon, as defined in any provision of subparagraph (G) or (H) of this subdivision, may be assembled if those parts are in the possession or under the control of the See same person; Conn. Gen. Stat. §§ 53-202a. The newly added “other” fireaIdrm. s that now qualify as assault weaponBs. are cPalllaeidn t“i2f0fs2 3 assault weapon[s]” in the statute. at Section 53-202a(10).

1. Connecticut Citizens Defense League Plaintiff Connecticut Citizens Defense League, Inc. (“CCDL”) is a non-profit whose mission is to “preserve the effectiveness of the Second Amendment through legislative and grassroots advocacy, outreach, education, research, publication, legal action, and programs focused on the constitutional right to keep and bear arms.” (Second Amend. Compl. ¶ 32) It alleges that it brings this action on behalf of its members, supporters, and similarly situated members of the public, and that it has “diverted, and continues to divert, significant time, money, effort, and resources” that were “otherwise reservIedd. for different institutional functions and 2pu. rposSees”c oton add Admreesns dthme eCnhta Flloenugnedda Stitoantu tes. ( ¶¶ 32-34.)

Second Amendment Foundation (“SAF”) is a nonprofit headquartered in Washington which maintains over 700I,d0.0 0 “members and supporters nationwide, including many legal action focusing on the constitutional right to privately own and possess firearms under the Second Amendment, and the consequences of gun control.” (Id. ¶ 38.) It alleges that the “Court’s interpretation of the Second Amendment directly impacts SAF’s organizational interests” Iadn.d those of its members and supporters in Connecticut, on whose behalf it brings this suit. ( ) According to SAF, “individual Connecticut members have been adversely and directly harmed and injured by Defendants’ enforcemIde.nt of the statutory prohibition on the sale, transfer, and ownership” of assault weapons. ( ) SAF has dedicated I“dre. sources that would otherwi3s.e be aEvdaidlaieb lGer faonr to Jtrh.e r purposes” to engage in this lawsuit. ( ¶ 39.)

Plaintiff Eddie Grant Jr. is a Meriden, Connecticut resident and retired Connecticut Department of Corrections officer. (Pls.’ Mem. in Support of Prelim. Inj.I d[D. oc. # 52-1] at 8.)

He has a Connecticut pistol permit, which he has had for over 30 years. ( ) He has also been trained on the safe and effective use of AR-15-platform firearms as part of his Corrections officer tIrda. ining and was “repeatedly qualified as a safe and effective user” while working there. ( at 9.) He “seeIkds. to lawfully purchase and possess an AR-15-platform firearm for defensive purposes.” ( at 9.) His desire stems in part from his background as an African American man whose parents witnessed the struggle for civil rights in the Deep South, and his understanding that “racially motivated attacks were repelled in large part by the private ownership of effective defensive firearms as African-Americans bravely defenIdd.e d their lives and their right to equality under the rights guaranteed by the Constitution.” ( at 9-10.) 4. Jennifer Hamilton Plaintiff Jennifer Hamilton is a Nuisance Wildlife Control Operator working for the Connecticut IDd.e partment of Energy and Environmental Protection; she is also a firearms instructor. ( at 10-11.) Hamilton liveIsd .i n Enfield, Connecticut, and has pistol permits for purchase one or more firearms prohibited in Conn. Gen. Stat. § 53-202a – likely an AR-15- platform firearm – because of their adaptability and effectiveness for defensive purposes,” as well as a firearm “with a telescopic stock in order to adjust the firearm’s length of pull to fit her specific body type and size, which wIdil. l, in turn, give her greater control over the firearm and improve her accuracy with it.” ( at 11.) Hamilton, who has been the victim of domestic violence, states in her affidavit that shIde. relies on defensive firearms to protect herself and he5r .f amilyM fircohma ethl rSetaietsfe aln d attacks. ( ) Plaintiff Michael Stiefel is a retired Connecticut DepartmIde. nt of Corrections officer who has held a Connecticut pistol permit for over thirty years. ( at 12.) During his career, he was trained on the safe and effective use of AR-15 platformI dfi.r earms and qualified annually as a safe and effective user of AR-15 platform firearms. ( at 12-13.) He “seeks, and intendsI, dt.o lawfully purchase and possess an AR-15-platform firearm for defensive purposes.” ( at 13.)

All three individual Plaintiffs submit in their affidavits that they are CCDL and SAF members, that they meet “all federal and state requirements to lawfully acquire and possess firearms, ammunition, and magazines,” that they have Connecticut pistol permits, and that they own firearms categorized as 2023 assault weapons and have taken active steps to attempCt .t o acqDueirfee nadddaintitosn al 2023 assault weapons. (Pls.’ Mem. at 8-12.)

Defendants are Commissioner of Connecticut’s Department of Emergency Services and Public Protection (“DESPP”) James Rovella, and Connecticut’s State’s Attorneys Walcott, See Doyle, and Narducci. ( Second Amend. Compl). All Defendants are sued in their official capacitDie.s . Procedural History Plaintiffs filed their initial complaint on September 29, 2022, and filed their first amended complaint on October 24, 2022. On February 3, 2023, Plaintiffs filed an emergency motion for temporary restraining order and preliminary injunction (“TRO”) barring enforcement of Conn. Gen. Stat. §§ 53-202a, 53-202b, and 53-202c (“the Assault Weapons Ban”), and, in the alternative, sought to enjoin Defendants from treating firearms “that have been considered legal ‘others’ under Connecticut law as ‘assault weapons’ until the Court can determine the merits of their application for a preliminary injunction.” [Doc. # 28]. On th February 8, 2023, Defendants fileSde ea motion to dismiss based on 11 Amendment immunity, [Doc. # 29], which was granted. ( [Doc. # 63].) The TRO was dismissed for lack of standing on June 1, 2023, based on a lack of evidence that Plaintiffs were subject to a credible and imminent threat of enforcement of the ATF rule against them. [Doc. # 41]. After Governor Lamont signed Conn. Public Act No. 23-53 into law on June 6, 2023, the Court permitted Plaintiffs to file a Second Amended Complaint and an amended motion for preliminary iInI.j unctiLoeng taol aSdtadn cdhaarllde nges to the newly defined categories of assault weapons.

To obtain a preliminary injunction, “the movant has to demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the iYnajnugn cvt.i oKno.s Tinhsek imovant also must show that the balance of equities tips in his or her favor.” , 960 F.3d 119, 127 (2d Cir. 2020). When

2 See Defendants Lamont, Griffin, Kelley, Applegate, Corradino, Shannon, Gailor, Ferencek, Watson, Gedansky, Platt, and Mahoney were dismissed from the suit. [Doc. # 63]. “the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” the injunction will onlyP lbaez ag Hraenatlethd Lifa bboortaht oirrrieeps,a Irnacb. lve. hPaerramle asn, d a likelihood of success on the merits are shown. 878 F.2d 577, 580 (2NdA CGiRr. 1989).

This Court held in that an injunction seeking to enjoin enforcemeNnAt GoRf Connecticut’s assault weapon ban was a prohibitory one, rather than a mandatory one.

PI Ruling at 13. Defendants urge the Court to find in this case that the injunction is a mandatory one because Plaintiffs N“seewek Y toor ke nSjtoaitne eRniffloer c&e Pmisetnotl oAfs as'nn ,i nIn-fco. rvc. eC sutoamtuote that has been upheld as constitutional” in Consumer Directed Pers. A, 8ss0is4t aFn.3cde 2A4ss2'n ( 2odf CNier.w 2 0Y1o5rk) (SDteaftse.,’ OInpcp. ’nv. aZt u7c.)k eDrefendants cite to , No. 118CV746FJSCFH, 2018 WL 3579860, at *2 (N.D.N.Y. July 25, 2018), in which the district court interpreted the “status quo” as being the tCiomnes utmhaetr thDe irsetacttuedte pPlearisn. tifAfss ssiostuagnhcte toA esns’jno in enforcement of came into effect; however, Mastrovincenzo v. City of New York failed to address the Second Circuit’s , 435 F.3d. 78, 90 (2d Cir. 2P0a0n6k)o fsi nDdininerg Ctohrapt . evn. Njoainssianug eCnnftoy.r Lceemgiselnatt uorf ea statute is prohibitory, rather than mandatory. , 321 F. Supp. 2d 520, 523 (E.D.N.Y. 2003), suffers from a similar flaw. Thus, the Court finds that absent any demonstration that granting the injunction would grant Plaintiffs all the relief sought, it is of a prohibitory injunction rather than a mandatory one.

Mastrovincenzo Defendants’ arguments might have more weight if they were distinguishing oCnuo tmhoe’ sb asis that the statute they were defending had been found constitutional, thus establishing a status quo of enforcement, by a caseB wruheons,e holding was still binding; however, ultimate holding that the Challenged Statu tes were constitutional was premised III. Discussion NAGR, In the Court ruled on a motion for a preliminary injunction involving the same statute being challenged here, but which challenged only the firearms thatN AwGeRre banned prior to the June 6, 2023 amendment. The Court adopts its prior holding in Bruenas to the analytical framework that now applies to Second Amendment challenges post- and the burdens borne by Plaintiffs and Defendants under that analytical framework. Thus, the only questions remaining to be decided on this motion are whether the Plaintiffs have (1) come forward with different or additional evidence that would warrant a different result in this case as to the pre-amendment categories of firearms, and (2) whether 2023 assault weapons may beA c.o nstitSuttaionndaalrlyd bfoanr nEevda. l uating Second Amendment Claims Heller Bruen, Under and Plaintiffs “bear the burden of producing evidence that the specific firearms they seek to use and possess are in common use for self-defense, that the people possessing them are typically law-abiding citizeNnAsG, Ran d that the purposes for which the firearms are typically possessed are lawful ones.” PI Ruling at 33. “To the extent that Defendants seek to demonstrate that the regulated firearms are instead dangerous and unusual weapons that are not protected by the Second Amendment, Defendants must demonstrate either that the weapons are unIdu.s ually dangerous, or that they are not commonly used or possessed for self-defense.” at 34. “If Plaintiffs establish each of those elements, the burden shifts to Defendants to justify their regulation bIads.e d on Bruen’s requireBm. ents Ffoarc eiaslt aCbhliaslhleinngg reesl evant similarity to history and tradition.” at 36.

This Court recently held that the standard for bringing facial challenges is that plaintiffs must show “that no set of circumstances exists” under which Utnhiet eCdh Satllaetnegs evd.

SSataleturnteos would be constitutional based on the standard established in Cmty. Hous. Improvement Program v. City of New York See NAGR , 59 F.4th 540, 548 (2d Cir. 2023).

PI Ruling at 13-16. However, the Supreme Court has also cautioned that “whenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutioRneagl,a int ivs. tThiem deu, Itny cof this court to so declare, and to maintain the act in so far as it is valid[,]” New York State., R4i6fl8e Uan.Sd. 6P4is1t,o 6l 5A2ss ’(n1, 9I8nc4.) v, .a Cnudo tmheo Second Circuit followed this principle in , 804 F.3d 242, 265, 269 (2d Cir. 2015) by finding certain provisions of New York and Connecticut’s statutory scheme regulating firearms to be unconstitutional (for example, Connecticut’s ban on the Remington Tactical 7615 pump action rifle) and invalidating only those specific provisions while leaving the larger regulatory scheme intact. Thus, the Court will determine for each challenged portion of the statutes whether Plaintiffs have established that there is no set of circumstances under which the bans of the various types of firearms standing alone and in conjuncCt.i on wMithe rthitesi ro af cPcleasisnotrifiefss’, Saencdo onfd la Argmee cnadpmaceitnyt m Cahgaalzleinnegse, c ould be constitutional.

1. Whether Assault Weapons are Commonly Used for Self-Defense, and Typically Possessed by Law Abiding Citizens for Lawful Purposes, or are Dangerous and Unusual Plaintiffs argueB trhuaetn there is “absolutely no question that the Plaintiffs meet the first requirement” under that their proposed conduct of keeping and bearing assault weapons for the purpose of self-defense “falls NwAiGthRi,n the protectio ns of the Second Amendment’s text.” (Pls.’ Mem. at 19.) However, in this Court heldthat showing mere statistical numerosity is insufficient to show that a weapon is in “common use for self- defense,” and that there is no evidence that assault weapons are commonly used for that purpose; noSneee NofA tGhRe evidence presented by Plaintiffs here gives the Court a basis for finding otherwise. PI Ruling at 26-33.

Although the classification of “others” as 2023 aNssAaGuRlt weapons was not challenged as part of the preliminary injunction motion brought in ,neither side argues that there are any significant differences in the key functionality between the 2023 assault weapons and the more limited group of firearms classified as assault weapons prior to the June 6, 2023 amendment; Defendants take the position that 2023 assault weapons are “functionally similar to firearms captured under the original ban,” (Defs.’ Opp’n at 6), and Plaintiffs posit that the “key distinction” between 2023 assault weapons and pre-2023 assault weapons is that 2023 assault weapons often use “pistol braces” (Pls.’ Mem. at 5). While Plaintiffs use the phrase “modern sporting rifles” and “others” separately on several occasions, they also acknowledge that the 2023 assault weapons being criminalized are all semiautomatic, and Plaintiff Grant described owning an “other” in an “AR15 configuration”, from which the Court infers that there is significant overlap in the key features. (Defs.’ Opp’n at 48) (quoting Plaintiff Grant’s Deposition Tr., Defs.’ Ex. I.). Detective Warenda also identifies several examples of “others” that are “AR-15 type”, (Wardenda Aff. ¶¶ 67-69) and submits that assault weapons—without distinguishing between pre-2023 categories and the new 2023 assault weapons—are a subcategory of all semiautomatic weapons, the majority of which are essentially civilian versions of military weapons. (Warenda Aff. ¶¶ 27, 19.) Plaintiffs also provide no evidence specific to common use of the 2023 assault weapons category besides

5 Heller Defendants also note that ThompsUonni tseudb Smtaatcehsi nv.e M giullnesr, or “Tommy Guns”, were “all too common” before Congress passed the National Firearms Act of 1934, but that nevertheless affirmed the holding of Hell, e3r0’s7 U.S. 174, 179 (M1i9ll3e9r ) that the National Firearms Act banning Tommy Guns was constitutional because certain weapons were “not eligible for Second Amendment protection.” affirmation of provides the statistics of how many Connecticut “others” are registered with the state and the individual testimony of each Plaintiff regarding how they use their 2023 assault weapon, neither of which shows whether the firearms are commonly used for self-defense.

Thus, absent any specific evidence that 2023 assault weapons are commonly used for self-defense where pre-June 2023 assault weapons were not, Plaintiffs have failed to meet their burden here as well. Plaintiffs are correct that the Second Amendment “provides them with the freedom to choose a firearm. . . that is not ‘dangerous and unusual’” and that is normally used for self-defense (Pls.’ Reply at 14); however, until they submit evidence that supports a finding that the assault weapons in the Challenged Statutes meet those requirements, they cannot show a likelihood of success on the merits of their Second Amendment cl2a.i m. Whether the Firearm Regulations are Consistent with the Nation’s Historical Tradition of Firearm Regulation Plaintiffs’ failure to produce evidence sufficient to show common use for self-deNfAenGsRe, of the assault weapons is fatal to their motion; however, the Court also finds that as in the Challenged St atutes are consistent with the nation’s history and tradition of firearm regulation. There,this Court concluded as a matter of law that the Challenged Statutes were enacted for the same reason as historical statutes regulating the method of carry and the types of weapons people could carry based on the new and dangerous characteristics of developing weapons technology: “to respond to growing rates of violence and lethality caused by modern innovations in technology and changing patterns of human behavior by regulating the particular kinds of weapons or modes of carry that were being most often employed by those causing the violence, while leaving NopAeGnR alternative avenues for lawful possession of firearms for purposes of self-defense.” PI Ruling at 66. Because the Challenged Statutes ban “only a subset of each category of firearms that possess new and dangerous characteristics that make them susceptible to abuse by non-law abiding citizens wielding them for unlawful purposes,” the Court also found that the Challenged Statutes impose “a comparable burden to the regulatioInds. on Bowie knives, percussion cap pistols, and other dangerous or concealed weapons[.]”

A number of other district courts have reached the same concluSseieo,n e .gab.,oOurte gtohne pFiurrepaormses fFoerd w'nh vi.c Kho eteakr lOyr feigreoanr Amll .a fnord Gwuena Spaofentsy regulations were enacted. , No. 2:22-CV-01815-IM, 2023 WL 4541027, at *46 (D. Or. July 14, 2023) (holding that “[t]hroughout this Nation's history, new technologies have led to the creation of particularly dangerous weapons,” which “became tied with violence and criminality” as they became more common, and that the statutes being challenged shared the same driving motivation of “address[ing] the features of those wDeelaapwoanrse tShtaatt em Sapdoer ttshmeemn 'ps aArstsi'cnu, lIanrcl.y v .d Daenlgaewraorues Dtoe pp'tu obfl iSca sfaetfey t&y” H aosm heilsatnodri cSaelc analogues); ., No. CV 22- 951-RGA, 2023 WL 2655150, at *13 (D. Del. Mar. 27, 2023) (finding that the statutes being challenged were comparably justified to historical analogues that “were enacted in response to pressing public safety concerns regarding weapons determined to be dangerous.”)

Plaintiffs offer no new evidence that und. ermines or refutes the Court’s prior analysis of this Nation’s history, or its ultimate holding Thus, the Court will not repeat the same historical analysis to hold that even if Plaintiffs had demonstrated that assault weapons in the Challenged Statutes were commonly used for self-defense, they cannot show a likelihood of success on the merits because bans on certain semiautomatic weapons are consistent with and justified by this nation’s history and tradition of firearm regulation.

IV. Conclusion Plaintiffs’ Motion for a Preliminary Injunction is DENIED.

IT IS SO ORDERED. ___________/s/_____________________________ Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 28th day of August, 2023