In the Cab

I read everything I can find about our case and, outside of my own website, everything is incorrect. I read from left to right, assuming the worst, hoping for the best. But, no reporter, podcaster, blogger, or video host has gotten it right yet.

Admittedly, Gazzola v. Hochul is a case with the most unusual procedural posture I’ve never seen before. Top line? We are currently awaiting decisions from two courts at once. Impossible though that is to achieve, we are concurrently awaiting decisions on the same motion from both the Second Circuit Court of Appeals and from the U.S. Supreme Court.

How is that possible? Clue: they don’t teach you this in law school or in continuing legal education.

Step 1. We are appealing an adverse decision of the District Court from December 1, 2022 that denied our request for a temporary restraining order to stop the enforcement of the unconstitutional and illegal new laws affecting the plaintiffs as federally-licensed dealers in firearms and as individuals. The appeal of the District Court motion went via emergency motion to the Second Circuit Court of Appeals, where it was denied on December 21, 2022. That adverse appellate decision was then appealed via emergency motion to SCOTUS, where it was denied January 8, 2023.

Step 2. We are appealing – also from that same adverse decision in District Court – the denial of our request for preliminary injunctive relief. It, too, is to stop the enforcement of these new laws. In federal court, the TRO is good for up to fourteen days. The PI flows through the balance of the lawsuit. Both the TRO/PI are requested in the same motion. People shorthand it as “TRO,” but that’s technically incorrect. The TRO is the shortest. The PI is the medium. Then, ultimately, we will ask as part of the final decision on the merits for a “permanent injunction.”

The PI appeal follows the same District Court to Circuit Court to SCOTUS track as in Step 1…but not quite. Read on.

I filed an extra document to SCOTUS called a “Rule 11 Petition.” The “Rule 11” part refers to SCOTUS Rules for a step available in no other court in the land. The Rule 11 Petition is brought by the plaintiffs, offering SCOTUS the opportunity to claw the case out of the Circuit Court of Appeals…without waiting for its decision.

Like the TV show “Gold Rush,” it’s like I’m in the cab of a huge excavator, reaching out the arm to scoop up my case in the bucket to pivot it out of the dig site and hover it in the air just above the dredge machine. SCOTUS has the foreman on the ground, operating the dredge, and that foreman is going to signal the operator whether to dump the bucket contents into the machine to rumble it through where, at the end of the machine run, we find out if there’s gold in the ground, or not via a SCOTUS ruling. Right now, that foreman is waiting for his radio to squelch and tell him whether at least four of the nine SCOTUS judges give a thumbs up to our case. If so, he’ll signal me to dump the bucket contents into the dredge feeder. This scenario is like skipping the Circuit Court judges who are panning by hand for gold with little, round trays at the dig site in NYC to use the heavy equipment to go straight for the big machine 240 miles south in Washington, D.C.

In order to file a Rule 11 Petition, I had to make out an argument that Gazzola v Hochul is of such “imperative public importance” as justifies deviation from routine appellate practice to require immediate determination.

Gazzola v Hochul was able to make that leap in a way no other case in the group could do because the offending new laws are designed to target licensed dealers in firearms with the aim to put them out of business as an industry across the state and that carries national impact.

That’s what we’re waiting on right now. Our Rule 11 Petition is scheduled for SCOTUS case conference this Friday, April 21, 2023. The results of that conference will be released on Monday, April 24, 2023 at 9:30 a.m.

If cert is granted, the case will be clawed up from the Second Circuit and SCOTUS will have jurisdiction. The nation’s high court will provide us with further instructions.

There are several possibilities as of April 3, 2023, the day we completed our submission on our Rule 11 Petition (which took months because the State was granted two extensions to respond). Because we have two days left until this Friday’s case conference, let’s simply plan to reconvene after the release of next Monday’s results. If I run you through all the possibilities and lay odds on the probabilities, it will simply confuse what I hope I’ve just straightened out.

In short, I’m in the cab, waiting to hear the voice come across the foreman’s radio, through the crackle, shouting “Fire it up!” Tune back in Monday, April 24, 2023 at 9:30 a.m., when we find out whether the word “granted” appears next to our case number for the Rule 11 Petition.

P.S.: If you can help as we “Pass the Hat” for case expenses, we’re about $500 behind. Every contribution helps, and I thank you for all that you’ve already contributed. This very intensive first stage has run approximately $30,000 from filing fees to process servers to printing costs and travel for oral arguments. As one example: to file a Petition to SCOTUS requires submission of 40 copies of the document to the court, plus three to opposing counsel. It, unfortunately, does add up. Thank you and be welcomed to share this appeal to “Pass the Hat” to others you know who may also be able to help.