Update: Judge Issues Temporary Restraing Order Blocking NM Gov. Grisham’s ‘Emergency’ Carry Ban

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UPDATE: US District Court Judge David Urias has issued a temporary restraining order blocking New Mexico Governor Michelle Lujan Grisham’s “emergency public health order” that suspended Second Amendment carry rights for citizens in Bernalillo County and the city of Albuquerque.

In an understatement, the AP writes . . .

The ruling Wednesday by U.S. District Judge David Urias marks a setback for Democratic New Mexico Gov. Michelle Lujan Grisham as she responds to several recent shootings that took the lives of children, including an 11-year-old boy as he left a minor league baseball game in Albuquerque.

Grisham was abandoned by state and local law enforcement officials, politicians in her own party, and even longtime gun control advocates after issuing her clearly unconstitutional executive order suspending citizens’ civil rights. New Mexico’s Attorney General pronounced the order unconstitutional and refused to defend it in court.

Stay tuned.

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At 1:00p mountain time this afternoon a District Court Judge will hear arguments in a number of motions seeking a temporary restraining order to block enforcement of New Mexico Governor Michelle Lujan Grisham’s authoritarian suspension of gun rights in the state’s largest city and county.

You can listen in to the hearing here.

User Name: audio
Password: 7AE9EC

We hear that the total number of sign-ins will be limited, so get in while you can. Our own LKB will be listening in and commenting below as the hearing plays out.

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    • the unintended legal consequences of this are going to be as hilarious as they will be beautiful. the mere fact that she brought David hoggs twitter handler to fire back shows just how disastrous this will be for their “movement”.

    • Following the standard l3ftist playbook of if you can’t (or won’t) punish the guilty, punish the innocent instead.

    • And it hasn’t been for years? I don’t know about New Mexico in particular, but it seems like banana republic crap I never would have believed would happen so regularly and openly in the USA even 15 years ago is now a regular occurrence. Sometimes there is effective pushback. More often there isn’t.

  1. How many of the cases will be heard? At last count there were six, and it would make sense to consolidate them all. It will also be interesting to see who defends the Gov after the AG bowed out. I also wonder of the Gov will be in attendance (but I rather doubt it since her attendance is not required).

    • The Governor would be incredibly foolish to attend, as plaintiffs could try and put her on the stand as a adverse witness. (If there is a preliminary injunction hearing, if I was representing a plaintiff I would drop a trial subpoena on her to make her have to show up.)

      Technically, the cases are not consolidated (at least not yet).

  2. Hi TTAG’rs:

    OK, I am standing by with a window connected to the Court’s audio link to the hearing. In my over 35 years of practice, this is the first time I have ever heard of a federal district court livestreaming a hearing (SCOTUS and Courts of Appeals started doing it during lockdown).

    I’ll be doing some commentary below.

    To set the stage, there are six cases that have been filed since the Governor’s bizarre executive order on Friday: 3 were filed on Saturday afternoon, one on Sunday, and two on Monday.

    On Monday, the Court scheduled a hearing on the Donk/GOA case on the plaintiffs’ motion for a Temporary Restraining Order (“TRO”) for 11 AM yesterday, only to cancel that hearing Monday evening. Yesterday, Court reset the hearing for 1 PM Mountain today, and made it for all six filed cases.

  3. Remember, the hearing today is on motions for a TRO — an application for an immediate injunction, before the defendant even has the chance to respond (they are often issued ex parte [without the other side even participating]). For that reason, they are granted only in the clearest cases, where there is a serious risk of irreparable injury.

    A TRO is only good for a limited amount of time, and expires unless the Court converts it to a preliminary injunction (usually after briefing and an evidentiary hearing).

    • LKB,

      Not my experience, but OK. In general, my experience has been that judges are reluctant to grant restraining orders absent ‘clear and convincing’ evidence, and MORE reluctant to do so when the side to be restrained wasn’t present/represented (as, I will not, it SHOULD be . . . due process, and all that nonsense). Not all judges, not all the time, but that has been my overall impression.

      Yes, a TRO is a short-term remedy . . . conceptually designed that way, to remedy a SHORT-TERM potential devastating impact, so a court could really address . . . due process. Hmmm. Wonder WTF that is all about???

      Unfortunately, in our “modern” society, being a judge (which was intended, by our Founders and history, to be a non-political position) has become a political office. How many MSM articles about a particular court ruling include (usually in the first paragraph), “Judge So-and-so, a [name of President] appointee, today ruled . . . “. That would only matter, to anyone, if being a judge were a political thing.

      Politics is downstream from culture. Cause, meet effect. I don’t WANT judges to be political; that should be the LAST thing on their minds. That they are is also undeniable. Hating a thing doesn’t mean you don’t recognize it exists.

      Emergency remedies are necessary, but should be granted VERY sparingly. The fact that this judge (a Biden appointee, not that that does, or should, matter) granted it in this case. I dunno, smart people might take a hint from that, and the idiot nature of Grisham’s fascist “executive order” (a hint at the REASON the Founders didn’t invest the executive with quasi-legislative authority).

      She was wrong. She was stupid. She did a Biden (and Trump, and Clintoon) and tried to mandate what she clearly didn’t have the power to mandate, and a judge slapped her down for it. And water is wet, and the check is in the mail, and I promise I won’t . . . never mind.

    • Cody Wisniewski (one of FPC’s counsel) advises that the Court has limited the number of public streamers to 50.

      While my window shows I am still connected, no sound yet.

        • I’ve just texted with Cody (he’s streaming via the “attorneys of record” portal), and he reports no sound yet.

          Stand by — often hearings start late, especially if there are logistics issues, which there may be on a case with this much public interest and hordes of attorneys . . . and where there may be last minute developments.

        • If there are other matters being heard on the calendar, they will not turn on the feed until this case is called. It is possible but unlikely that the site crashed.

  4. And usual LKB TTAG caveat: While I am a lawyer, I’m not *your* lawyer. Nothing expressed herein should be construed as legal advice by me, my firm, TTAG, or anyone else, and does not create any attorney-client relationship.

  5. Cody says he’s still not getting any audio. I suspect all the public interest may have crashed the Court’s audio server.

    Stand by.

    • “he’s not a judge.”

      Irrelevant, he IS an attorney, THE attorney for the entire New Mexico State government. He is giving his best advice to his client, through which he is advising their behavior toward enforcement activities.

  6. Court asks whether he has to do the historical analysis in order to enter a TRO. Counsel points to Bruen as already doing that on public carry.

    Court just says the relevant time period is for the 14th Amendment — at least 4 SCOTUS justices say it’s 1789 only.

  7. Neapolitano arguing that there is no connection between the Gov’s bans and crime, as the “emergency” is not from the actions of lawful carriers.

    Court is pushing hard on the “public health emergencies” declared during COVID and the fact that those allowed the suspension of constitutional rights. Hopefully, he’s just testing the parties’ positions.

  8. And now my audio feed just hiccupped and went back about ten minutes!

    Just got it back up.

    Next advocate FINALLY cites the SCOTUS decision in the Cuomo case that public health emergencies do not supersede the constitution.

  9. Tamp restraining order? Hell, the courts should put an end to this, and somebody should have the moment she signed it.

  10. Atkinson (counsel) counsel in the WtP/Smith case wrapping up.

    Court focusing on what portions of the order are at issue — counsel for GOA correctly pushes back on “all state property” is overbroad.

  11. Now up: Lowery for Blas (case #4).

    Argues that Bruen is dispositive, period. No categorical bans, and it is binding.

    Addresses “public health emergency” — this is NOT a legitimate “public health emergency” under New Mexico law.

  12. Court pushes back on “what about the liberty of families to be safe”? Oh please!

    Comment: I do not understand why no one has pushed back that “public health emergency” is not a magic incantation that the Gov can merely utter and then can do whatever they want. Lowery has gotten close by pointing to the definition of public health emergency under NM law.

    • “Court pushes back on “what about the liberty of families to be safe”?”

      Didn’t the Governor herself admit that the order would be ineffective?

    • ““what about the liberty of families to be safe””

      According to the governors own words, law abiding gun owners are not the problem. So what about the ‘liberty of families to be safe’ is threatened by law abiding gun owners that even the governor said are not the problem.

      What about the liberty of families to be safe from, and have the ability of firearms self defense available to them to defend against and to make them safe from, the crime the governor will not do anything about and in her own words said is where the problem lies? What about the liberty of those families to be safe?

      Its sounds to me so far that the judge is kinda buying the governors actions here as ‘justified’. That is an anti-gun argument that some way a law abiding person with a gun is automatically a threat to others, while letting the the true cause of the threat, the criminal, simply continue what they were doing.

    • “Lowery has twice said Bruen is a strict scrutiny test. Nope.”

      Isn’t ‘Bruen’ pretty much the next-best thing to pure strict scrutiny with Thomas’ “one balancing test too many” stipulation?

  13. Now up: Aragon for FPC et al. He’s also making the NM State Constitution argument, and pointing out the Gov.’s oath to defend the NM Constitution. Very smart move.

  14. Unfortunately, Aragon’s complaint doesn’t plead a NM Constitutional violation.

    Lowery’s complaint (#3) DOES make it — he should pop up and point that out.

    • I believe US Court does not have jurisdiction to rule on a state’s constitution and apply its merits to a federal question…that case would have to be made within NM’s court system.

      • Not exactly. State law claims (such as claims under the NMCRA for violations of the state constitution) can be made in a federal case like these where the court has federal question jurisdiction under what used to be known as pendent jurisdiction (n/k/a supplemental jurisdiction).

        Court has discretion to consider or not consider such claims, but it does have jurisdiction.

      • Chris, I have bad news for you, The Court has jurisdiction as it is an EO issued by the NM Gov. What happens in that state is the jurisdiction of both the State and Federal courts.

  15. OK, now up: someone (unidentified) is representing defendants.

    First claiming that defendants haven’t been served. That’s a stupid argument, as the Court points out. Just as I can go onto PACER and pull down the documents, they can to.

    Court says “defendants have a hard road here.” Yay.

  16. Oh good grief: attorney for the defendants says the EO “isn’t a law,” and thus the NM Constitution provision doesn’t apply.

    Counsel for the defendants is justifying the EO because “there’s no way to tell who is a good guy and bad guy.”

    • “Oh good grief: attorney for the defendants says the EO “isn’t a law,” and thus the NM Constitution provision doesn’t apply.”

      If violating it had criminal penalties attached to it, it damn sure is a law, for all practical purposes…

      • How would she expect the NM SP to enforce her EO if it wasn’t “law”? If it’s not “law” and one were arrested, what would they be charged with? Is that like being charged with disturbing the peace for being thrown through a window?

  17. The verbal gymnastics on the part of the defendant, as I’m listening, are astounding. The constitution says “no law shall…” Response: “This isn’t a law, this is an emergnency order pursuant to the public health code.”

    Since when is a code not a law or at least not backed up by a law that says the code is rule (of law may be unwritten)?

    • Governor’s attorney (Governor herself?) is trying to tell the Judge what to do now and to “correct” the Supreme Court. Judge pushes back, pointing out that he is a District Court, not SCOTUS.

      • If they weren’t so serious, that would be funny. On second thought, it’s laughable even if they are serious.🤣🤣

  18. Is it just me? I detect hints of the judge wanting to take this into the SCOTUS forbidden interest-balancing zone for the right.

  19. Court recognized that the EO is probably vague.

    Court recognized that the laws struck in Bruen were much more narrow than what the Gov has done. Finally.

    D’s counsel is now arguing that because cert has been granted in Rahini, Bruen “is going to be narrowed.” BZZZZZ. Bruen is still the law. If and when SCOTUS does so, come back and argue it; until then, follow the law.

    • “Bruen is still the law. If and when SCOTUS does so, come back and argue it; until then, follow the law.”

      Precisely *why* maintaining the current High Court balance is critical. The moment it isn’t, they will rule ‘Heller’ was wrongly decided, the ‘right’ is collective, and every gain we made since then is ripe for attack… 🙁

  20. Oh geez, the defendant tries to argue that it’s not 1793 and so we don’t have muskets and today’s situation didn’t exist. Also trying to argue that 1793 doesn’t apply because New Mexico didn’t exist.

      • In fairness, he is advocating from a significant position of weakness. Aside from emotional arguments (which are invalid), there really isn’t much left..

    • “Also trying to argue that 1793 doesn’t apply because New Mexico didn’t exist.”

      Then remove NM from the union now.

      What kind of stupid argument is that?

      • I suspect that a bunch of gun control folks have been talking in their own circles and came up with the idea. The problem with it is that the state, when it joins the Union, has to agree to the US Constitution.

        • I know what this is now…remember the TTAG article a week ago or so about Moms Demand Action banding together to search for things to defeat Bruen? I’ll bet these arguments from the defense are a result of that.