Fifth Circuit Clamps Down on NJ District Court in 2nd Amendment Case

FPC, SAF, NJ2AS Challenge New Jersey Handgun Carry Ban
Fifth Circuit Clamps Down on NJ District Court in 2nd Amendment Case

U.S.A. –-(– The saga continues in defense of the First and Second Amendments in federal courts. On April 1, 2022, the Fifth Circuit Court of Appeals, in a split decision in a three-judge panel, reversed the District Court’s decision to transfer the case to New Jersey. In a court opinion, this was a vigorous slap down against judicial bias and activism.

Defense Distributed and the Second Amendment Foundation (SAF) sued the State Department for violating their First and Second Amendment rights to publish computer files on the Internet.

They reached a settlement. Various Attorney Generals filed unprecedented actions to prevent the settlement from being implemented. One of the most egregious was the New Jersey Attorney General (NJAG) Gurbir Grewal, who filed injunctions against Defense Distributed for their publishing efforts in Texas.

Defense Distributed filed suit against the NJAG. The District Court in Texas ruled against them. They appealed to the Fifth Circuit Court of Appeals. Defense Distributed and SAF won.

The State Department joined Defense Distributed in a lawsuit against the NJAG for interference. Grewal moved to have the case dismissed, and failing that, have the case against him severed from the more general case, and moved to New Jersey, where, he would have more influence, power, and likely, a more sympathetic judge.

In the opinion issued on April 1, 2022, the Fifth Circuit slaps down both the New Jersey District Court and the Texas District court who agreed to severe Grewal’s case and move it to New Jersey. From the opinion pages 5-6:

Following our remand to the district court, Defense Distributed amended its complaint to join the State Department as a defendant for its alleged failure to comply with a Settlement Agreement reached with Defense Distributed in 2018.Shortly after, the NJAG moved to sever Defense Distributed’s case against him and transfer that portion of the case to a New Jersey federal court.The State Department opposed severance, as did Defense Distributed. Nonetheless, the district court obliged the NJAG by written order both severing and transferring the case against him.

The Fifth Circuit states, on page 12:

We conclude that the district court clearly abused its discretion by applying the wrong legal standard for evaluating the NJAG’s conjoined severance and transfer motions and by egregiously misinterpreting Defense Distributed’s claims. 

On page 22:

The district court also misapplied the second factor of the severance analysis in determining that Plaintiffs’ claims do not involve common issues of law or fact.

On page 30, the last page of the majority opinion:

Correctly assessed, the NJAG did not carry its burden to clearly demonstrate that transfer is clearly more appropriate than the Plaintiffs’ choice of forum. The district court erred legally and factually in virtually every aspect of this issue, and its decision, which has unnecessarily lengthened this litigation even more, represents a clear abuse of discretion for which mandamus is an appropriate remedy.

The dissent, unexpectedly, disagrees, claiming the transfer of the case to a New Jersey Court, where the New Jersey AG is the defendant, is not unusual enough to warrant the extraordinary remedy of mandamus.

Author’s Opinion:

The appearance of corruption in transferring the case to New Jersey, when the appellate court had already ruled against the NJAG’s claim the case should be tried in New Jersey instead of Texas, is unmistakable. The District Courts’ actions are indeed unusual and egregious. They call out for correction.

The Fifth Circuit majority opinion is correct and much needed.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten