Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, 120518 FED3, 18-3170

Docket Nº:18-3170
Opinion Judge:SHWARTZ, CIRCUIT JUDGE.
Party Name:ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS, INC.; BLAKE ELLMAN; ALEXANDER DEMBROWSKI, Appellants v. ATTORNEY GENERAL NEW JERSEY; SUPERINTENDENT NEW JERSEY STATE POLICE; THOMAS WILLIVER, in his official capacity as Chief of Police of the Chester Police Department; JAMES B. O'CONNOR, in his official capacity as Chief of Police of the ...
Attorney:David H. Thompson Jose J. Alicea Peter A. Patterson Haley N. Proctor Cooper & Kirk, Daniel L. Schmutter Hartman & Winnicki Counsel for Appellants Jeremy Feigenbaum Stuart M. Feinblatt Office of Attorney General of New Jersey Division of Criminal Justice, Bryan E. Lucas Evan Andrew Showell Office ...
Judge Panel:Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges. BIBAS, Circuit Judge, dissenting.
Case Date:December 05, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS, INC.; BLAKE ELLMAN; ALEXANDER DEMBROWSKI, Appellants

v.

ATTORNEY GENERAL NEW JERSEY; SUPERINTENDENT NEW JERSEY STATE POLICE; THOMAS WILLIVER, in his official capacity as Chief of Police of the Chester Police Department; JAMES B. O'CONNOR, in his official capacity as Chief of Police of the Lyndhurst Police Department

No. 18-3170

United States Court of Appeals, Third Circuit

December 5, 2018

Argued November 20, 2018 [*]

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.N.J. No. 3:18-cv-10507) District Judge: Hon. Peter G. Sheridan

David H. Thompson Jose J. Alicea Peter A. Patterson Haley N. Proctor Cooper & Kirk, Daniel L. Schmutter Hartman & Winnicki Counsel for Appellants

Jeremy Feigenbaum Stuart M. Feinblatt Office of Attorney General of New Jersey Division of Criminal Justice, Bryan E. Lucas Evan Andrew Showell Office of Attorney General of New Jersey, George C. Jones John H. Suminski McElroy Deutsch Mulvaney & Carpenter Jennifer Alampi Carmine Richard Alampi Alampi & Demarrais Counsel for Appellees

John P. Sweeney Bradley Arant Boult Cummings Suite 1350 Counsel for Amicus National Rifle Association of America

Timothy M. Haggerty Friedman Kaplan Seiler & Adelman Counsel for Amicus Giffords Law Center to Prevent Gun Violence

Loren L. AliKhan Office of Attorney General of District of Columbia Office of the Solicitor General Counsel for Amici District of Columbia, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Maryland, State of Massachusetts, State of New York, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, and State of Washington

Lawrence S. Lustberg Jessica Hunter, Esq. Gibbons Counsel for Amicus Everytown for Gun Safety

Before: GREENAWAY, JR., SHWARTZ, and BIBAS, Circuit Judges.

OPINION

SHWARTZ, CIRCUIT JUDGE.

Today we address whether one of New Jersey's responses to the rise in active and mass shooting incidents in the United States-a law that limits the amount of ammunition that may be held in a single firearm magazine to no more than ten rounds-violates the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Equal Protection Clause. We conclude that it does not. New Jersey's law reasonably fits the State's interest in public safety and does not unconstitutionally burden the Second Amendment's right to self-defense in the home. The law also does not violate the Fifth Amendment's Takings Clause because it does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified. Finally, because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the law's exemption that permits them to possess magazines that can hold more than ten rounds does not violate the Fourteenth Amendment's Equal Protection Clause. We will therefore affirm the District Court's order denying Plaintiffs' motion to preliminarily enjoin enforcement of the law.

I

A

Active shooting and mass shooting incidents have dramatically increased during recent years. Statistics from 2006 to 2015 reveal a 160% increase in mass shootings over the prior decade. App. 1042. Department of Justice and Federal Bureau of Investigation ("FBI") studies of active shooter incidents (where an individual is actively engaged in killing or attempting to kill people with a firearm in a confined, populated area) reveal an increase from an average of 6.4 incidents in 2000 to 16.4 incidents in 2013. App. 950, 953. These numbers have continued to climb, and in 2017, there were thirty incidents. App. 1149, 1133. In addition to becoming more frequent, these shootings have also become more lethal. App. 906-07 (citing 2018 article noting "it's the first time [in American history] we have ever experienced four gun massacres resulting in double-digit fatalities within a 12-month period").

In response to this trend, a number of states have acted. In June 2018, New Jersey became the ninth state to pass a new law restricting magazine capacity.1 New Jersey has made it illegal to possess a magazine capable of holding more than ten rounds of ammunition ("LCM").[2] N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j) ("the Act").

Active law enforcement officers and active military members, who are "authorized to possess and carry a handgun," are excluded from the ban. N.J. Stat. Ann. 2C:39-3(g). Retired law enforcement officers are also exempt and may possess and carry semi-automatic handguns with magazines that hold up to fifteen rounds of ammunition.3 Id. at 2C:39-17.

The Act provides several ways for those who are not exempt from the law to comply. Specifically, the legislation gives LCM owners until December 10, 20184 to (1) modify their LCMs "to accept ten rounds or less," id. at 2C:39-19(b); (2) render firearms with LCMs or the LCM itself inoperable, id.; (3) register firearms with LCMs that cannot be "modified to accommodate ten or less rounds," id. at 2C:39-20(a); (4) transfer the firearm or LCM to an individual or entity entitled to own or possess it, id. at 2C:39-19(a); or (5) surrender the firearm or LCM to law enforcement, id. at 2C:39-19(c).

B

On the day the bill was signed, Plaintiffs Association of New Jersey Rifle and Pistol Clubs and members Blake Ellman and Alexander Dembrowski (collectively, "Plaintiffs")5 filed this action under 42 U.S.C. § 1983, alleging that the Act violates the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Equal Protection Clause. App. 46-64. Plaintiffs also sought a preliminary injunction to enjoin Defendants Attorney General of New Jersey, Superintendent of New Jersey State Police, and the Chiefs of Police of the Chester and Lyndhurst Police Departments from enforcing the law.

The District Court held a three-day evidentiary hearing on the preliminary injunction request. The Court considered declarations from witnesses, which served as their direct testimony, and then these witnesses were thoroughly examined.6 The parties also submitted various documents, including declarations presented in other cases addressing LCM bans, books and journal articles on firearm regulations, reports on the efficacy of the 1994 federal assault weapons ban, statistics about gun ownership and use, news articles about shooting incidents, FBI reports on active shooter incidents, historical materials on LCMs, and police academy training materials.7 The evidence disclosed the purpose of LCMs, how they are used, and who uses them.

A magazine is an implement that increases the ammunition capacity of a firearm. App. 128. An LCM refers to a particular size of magazine. App. 159. LCMs allow a shooter to fire multiple shots in a matter of seconds without reloading. App. 225, 865. Millions of LCMs have been sold since 1994, App. 1266, and 63% of gun owners reported using LCMs in their modern sporting rifles, App. 516, 753. LCMs often come factory standard with semi-automatic weapons. App. 656, 994-95.

Gun owners use LCMs for hunting and pest control. App. 655. LCMs have also been used for self-defense. App. 225, 844-51, 915-16, 1024. The record does not include a reliable estimate of the number of incidents where more than ten shots were used in self-defense, 8 but it does show that LCMs "are not necessary or appropriate for self-defense," App. 861, and that use of LCMs in self-defense can result in "indiscriminate firing," App. 863, and "severe adverse consequences for innocent bystanders," App. 1024.

There is also substantial evidence that LCMs have been used in numerous mass shootings, 9 App. 851-53, 909-10, 914, 967-88, 1024, 1042, 1057, 1118-26, 1165-71, and that the use of LCMs results in increased fatalities and injuries, App. 562. "[W]hen you have a high capacity magazine it allows you to fire off a large number of bullets in a short amount of time, and that gives individuals much less opportunity to either escape or to try to fight back or for police to intervene; and that is very valuable for mass shooters." App. 225, 865. The record demonstrates that when there are pauses in shooting to reload or for other reasons, opportunities arise for victims to flee, as evidenced by the 2017 Las Vegas and 2013 D.C. Navy Yard shootings, App. 114, 914, 1045, or for bystanders to intervene, as in the 2018 Tennessee Waffle House shooting and 2011 Arizona shooting involving Representative Gabrielle Giffords, App. 830, 1113.

While a trained marksman or professional speed shooter operating in controlled conditions can change a magazine in two to four seconds...

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