Case Conference

It’s about 2:15 p.m. EST as I pen this to you, dear friends of the plaintiffs in Gazzola v. Hochul, on what has been a much more difficult and longer journey since November 8, 2022 than we imagined could be possible.  On that date, we submitted the first of our emergency applications for TRO/PI to Judge Brenda K. Sannes in the Northern District Court of New York – the same judge who just issued the attorney fee award in NYSRPA v. Bruen because she is the judge to whom that case was first assigned.

It's a funny thing: a “TRO/PI.” 

That stands for “Temporary Restraining Order” and “Preliminary Injunction.”  In Second Circuit federal practice, the attorney requests this combination because the TRO is an immediacy tool, designed to last until the court hears, considers, and rules on a full briefing whether to grant the PI.  A PI is good for the life of the case. 

Judge Sannes did the unusual: she immediately denied both the TRO + the PI and did so by text order.  At the time, I chose to interpret that as a not bad outcome because it allowed us to fly into the Second Circuit, where we were also quickly denied on the TRO portion, only, which allowed us to zoom into SCOTUS on an emergency appeal and a filing of an additional document called a “Rule 11 Petition.”  Both of those TRO requests to SCOTUS were denied in January 2023.

That wasn’t the end of the request for preliminary relief.

Gazzola v. Hochul then started its laborious climb through what is known as “full briefing” to the Second Circuit Court of Appeals on the PI.  (A PI can issue, even if you’re denied on a TRO, and vice versa.)  It’s time consuming and it’s expensive to do full briefings to any federal appellate court.  We were only able to do so with your support.  Governor Hochul again calls us “NRA donors and MAGA extremists” (as recently as about two hours ago on her Facebook page), but I call it “authentic.”  I’m not from the stable of esteemed NRA attorneys.  I’m simply me.  And the plaintiffs are simply the men and women you hang out with when you pick up a box of ammunition to go out for that buck in the fall.  Folks have contributed $5 and $10 and $20 towards our out-of-pocket expenses, and on many a Sunday I write thank you cards because that $5 matters.  What Kathleen will never understand is that the Second Amendment is about ordinary, every day people, who’ve got your back, even if you don’t want to carry or eat venison stew or bid too much money on a trip you don’t end up taking at the next Safari Club dinner.

And so we – all of you and me – got the job done.  We got the full briefing on paper into the Second Circuit and then myself and others trundled across the bridge and into the city and did oral arguments, while so many of you listened live and sent fabulous e-mails, texts, and donations as the round of applause.

That was March 20 and Gazzola v. Hochul and four additional cases have been quietly waiting, respecting the process, ever since.  All five cases are waiting for rulings on the PI requested relief.  The case name Antonyuk v. Nigrelli is the one most often heard, and it symbolizes us all.

The facts changed, abruptly, and with force,

when the New York State Police Joint Terrorism Task Force members started showing up at about a half dozen dealers, primarily around the Albany/Hudson/Catskill/Adirondack regions, second week of August.  As data started coming in from dealers, we learned it started end of July.  Then, on August 19, I spoke with a federally-licensed dealer who had received a letter in the mail from Hochul – Nigrelli, announcing the new “background check system” would go live on September 13.

I’ve barely left my computer since then.  You did an amazing, amazing job with communication and documentation on September 12 and September 13 and to present.  You networked across federally-licensed dealers in firearms throughout this state.  You read blogs and carried them in to local FFLs and asked them to call, write, and e-mail me.  You + the FFLs have been a military-grade communications network of which it would be difficult to express my pride in our industry.  You and the FFLs have put together a play-by-play recording of history that ground the Hochul launch party to a halt.  We’ve made it from July 25 (first on-site NYSP-JTTF investigation) to today (SCOTUS case conference) without an arrest.  Together, we shone a spotlight on what most certainly would have been a situation even worse than what has transpired, thus far.

With information proving what we were already arguing,

I filed an “Emergency Application” to pull three items out of our many items fully briefed before the Second Circuit to ask that court to please issue their PI ruling at least on these items.  A week later, they issued the word “Deny.”  On Friday, September 8, 2023 at just after 5:00 p.m.  That simple denial cleared me to file upwards to SCOTUS on these three elements.  On Monday, September 11, 2023, we did just that.  On Tuesday, September 12, 2023, Justice Sotomayor (the assigned justice for motions out of Second Circuit cases) also said just one word: “deny.”  And that cleared me to instantly renew the application under SCOTUS Rule 22.4 to the justice of our choice, and that was Justice Thomas.  On September 20, 2023, Justice Thomas directed Gazzola v. Hochul to case conference for today, October 6, 2023.

A ”case conference” is a routine tool of the nation’s high court. 

A time when the nine justices sit down together, behind closed doors, and speak to each other.  A shroud of silence – to which normally I am the most vocal of opponents – falls hush across that building that is tucked just behind the right corner of the U.S. Capitol.  And they convene and they speak and we, The People, allow their privacy as an indispensable component of Justice.  Agree.  Disagree.  Perhaps at times even throwing pens across the table?  But, always sitting together at a single bench in a single courtroom as this U.S Supreme Court.

As is routine, case conference results publish on the Monday after a Friday case conference, unless there’s a federal holiday, in which case, results publish on Tuesday.  At 9:30 a.m. EST.  And in a multi-page PDF and with case entries to the public-facing case docket page on the SCOTUS website.  We get to share that virtual moment, together, on Tuesday.

I could sit here and walk you through a fairly wonky conversation around possible outcomes. 

I could also tell you that yesterday I bought two Powerball tickets, and Kevin, this morning over bagels at Soulshine in Lake Placid, said I have better statistically-computed odds of winning full relief requested on Tuesday. 

Even with that cheeky remark eliciting a smile, the questions remain. Are we the right time, right place, right plaintiffs?  And have I properly forward the voices of those experiencing this crushing blow to the Second Amendment as a direct result of Hochul’s 2022 laws? 

Instead, on this Friday afternoon, let me say this on behalf of myself and the plaintiffs: we have given everything we had to bring to this fight and we have pushed harder than we thought possible to get the attention of a judge to get relief for you, the man and the woman on the ground just trying to lawfully exercise your fundamental, first class Second Amendment rights.  If it’s a deny, it will not have been for a lack of effort. 

And for this, we all wish to thank you for making our journey possible.  Your contributions covered more than $20,000 in expenses at all three levels of court submissions.  Equally important, without your five million and two questions and your own thoughts and ideas, our papers wouldn’t be as thorough. Plus, your prayers and encouraging sentiments prove that what they flung at us to divide us, only brought us closer.

We’ve already won. 

We, The People, have already won.  We live in America, a country where ordinary people in times of extraordinary government abuse have the right and the opportunity to stand up and fight through the court system to restore our civil rights.  And, in the worst of times, in which we now live, under a regime that is about power and not “public safety,” we have the chance to put our grievance before the nation’s high court.

On behalf of the plaintiffs and everyone on our “small, but mighty!” team, thank you for the opportunity to bring your voices forward.  May what we have submitted be sufficient to satisfy the Court.