Case: 19-3142 Document: 003113415946 Page: 1 Date Filed: 11/25/2019

No. 19-3142

In the
United States Court of Appeals
for the Third Circuit
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ASSOCIATION OF NEW JERSEY RIFLE AND PISTOL CLUBS, INC.;

BLAKE ELLMAN; ALEXANDER DEMBOWSKI,
Plaintiffs-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,
Defendants-Appellees.
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On Appeal from the United States District Court
for the District of New Jersey
Case No. 3:18-cv-10507
The Honorable Peter G. Sheridan
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REPLY IN SUPPORT OF MOTION FOR STAY
PENDING THE SUPREME COURT’S DECISION IN
N.Y. STATE RIFLE & PISTOL ASSOCIATION, INC. V. CITY OF N.Y.
─────────────♦─────────────

Daniel L. Schmutter John Parker Sweeney

Hartman & Winnicki, P.C.
74 Passaic Street
Ridgewood, N.J. 07450
Telephone: (201) 967-8040
dschmutter@hartmanwinnicki.com
James W. Porter, III
Marc A. Nardone
Candice L. Rucker
Bradley Arant Boult Cummings LLP
1615 L Street N.W., Suite 1350
Washington, D.C. 20036
Telephone: (202) 393-7150
jsweeney@bradley.com
 Case: 19-3142 Document: 003113415946 Page: 2 Date Filed: 11/25/2019

The Court should stay these proceedings pending the Supreme Court’s

upcoming decision in New York State Rifle & Pistol Association, Inc. v. City of New

York, cert. granted (U.S. Jan. 22, 2019) (No. 18-280) (“NYSRPA”). Defendants’

arguments in response to Plaintiffs’ Motion for Stay lack merit and confirm that this

Court should exercise its inherent discretion “to control . . . its [own] docket,” see

Commonwealth Ins. Co. v. Underwriters, Inc., 846 F.2d 196, 199 (3d Cir. 1988)

(quotation omitted), by issuing a stay. Staying this case is the best and most efficient

course of action because the Supreme Court’s decision in NYSRPA (anticipated in a

mere matter of months) is likely to make new law on the Second Amendment which

may affect this Court’s analysis, and could resolve this appeal entirely.

Defendants made three arguments in opposition to Plaintiffs’ Motion for Stay.

First, Defendants argued that a stay is unnecessary because this Court has already

resolved this case in deciding Plaintiffs’ earlier appeal from the district court’s denial

of a preliminary injunction. (Response at 1); see also Ass’n of N.J. Rifle & Pistol

Clubs, Inc. v. Att’y Gen., 910 F.3d 106 (3d Cir. 2018). Second, Defendants argued

that a stay is unjustified because the Court cannot predict how NYSRPA will be

resolved. (Response at 2–6). Third, Defendants argued that a stay would

“functionally enjoin” the implementation of New Jersey’s magazine ban. (Response

at 7–8). None of these arguments are meritorious or persuasive.

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The Court’s earlier decision on a preliminary-injunction motion in the earliest

stages of this case does not control the outcome of this appeal now. Plaintiffs fully

briefed this issue in Opposition to Defendants’ Motion for Summary Affirmance,

and that Opposition is incorporated here. A panel of this Court denied Defendants’

Motion for Summary Affirmance by Order dated November 18, 2019. Defendants’

argument that a stay is unnecessary because “there is nothing left to do in this case”

(Response at 1) is manifestly incorrect in light of this Court’s ruling on the Motion

for Summary Affirmance and should be disregarded.

Defendants’ second argument fares no better. By Defendants’ logic, a stay

should never be granted in these circumstances because lower courts cannot predict

with accuracy how any higher court will resolve the issues on its docket. But

controlling law is not so restrictive or circular. Where a higher court decision may

conceivably affect the resolution of issues in the lower court, a stay may be granted.

“In the exercise of its sound discretion, a court may hold one lawsuit in abeyance to

abide the outcome of another which may substantially affect it or be dispositive of

the issues.” Bechtel Corp. v.. Local 215, Laborers’ Int’l Union of N. Am., AFL-CIO,

544 F.2d 1207, 1215 (3d Cir. 1976) (emphasis added); accord In re Michaels Stores,

Inc., No. 14-cv-07563-KMJBC, 2016 WL 947150, at *4 (D.N.J. Mar. 14, 2016);

Takacs v. Middlesex Cty., No. 08-694, 2011 WL 1375682, at *3 (D.N.J. Apr. 12,

2011). Because an upcoming decision in NYSRPA may affect the analysis of this

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case, or even be dispositive of it, a stay of these proceedings is well within this

Court’s discretion to grant. See id. It is not surprising that defendants would rush to

lock in some kind of decision before the Supreme Court speaks again on the Second

Amendment, but that is not the most prudent course. It is better to wait a few months

for definitive guidance on these important issues from the High Court than risk

issuing an inconsistent decision only for the sake of expediency.

In any event, NYSRPA is not as distinguishable as Defendants would have the

Court believe. Rather, NYSRPA is likely to resolve issues that bear directly on this

case. For example, the decision in NYSRPA should resolve whether Supreme Court

precedent forbids the use of tiered constitutional scrutiny in favor of an analysis

based on the Second Amendment’s text, history, and tradition. Adoption of the

Supreme Court’s text, history, and tradition analysis would undermine Defendants’

position altogether, by reinforcing the constitutional protection to arms—like the

banned magazines—that are “typically possessed by law-abiding citizens for lawful

purposes.” See District of Columbia v. Heller, 554 U.S. 570, 625 (2008). Even if it

rejects the text, history, and tradition analysis, the Supreme Court should resolve the

proper application of heightened constitutional scrutiny to Second Amendment

challenges. See Petition for Certiorari, N.Y. State Rifle & Pistol Ass’n v. City of N.Y.,

(No. 18-280), 2018 WL 4275878, at *21–22 (Sept. 4, 2018). Both of these arguments

have been raised and substantially briefed in this case (see Reh’g Pet., Ass’n of N.J.

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Rifle & Pistol Clubs, Inc. v. Att’y Gen. (No. 18-3170) (3d Cir. Dec. 19, 2018)), and

a Supreme Court decision on either issue will profoundly affect the outcome here.

The Court should stay this appeal and await the Supreme Court’s guidance on these

dispositive questions.

Defendants further argue that courts in other jurisdictions deciding similar

issues have not stayed their cases pending the Supreme Court’s decision in NYSRPA.

(Response at 5 (citing Worman v. Healey, 922 F.3d 26 (1st Cir. 2019); Duncan v.

Becerra, 366 F. Supp. 3d 1131 (S.D. Cal. 2019)). But the parties in Worman and

Duncan did not request a stay of those cases pending the Supreme Court’s decision

in NYSRPA, and a decision from the Supreme Court was not imminent in those cases

as it is now (oral argument in NYSRPA is a little over a week away). Like this Court,

those courts would have been well within their discretion to stay the case sua sponte

(see N.Y. State Rifle & Pistol Ass’n, et al. v. Beach, et al., No. 19156 (2d Cir. Aug.

28, 2019) (order directing parties to “notify the Court, by letter, of the Supreme

Court’s decision in [NYSRPA]”); Young v. State of Haw., No. 12-17808 (9th Cir.

Feb. 14, 2019) (staying the case pending a decision in NYSRPA)) or on a party’s

motion. Courts across the country have freely chosen to stay or decide cases in these

sorts of circumstances, reinforcing—rather than negating—this Court’s broad

discretion to further the efficient administration of justice. See Commonwealth Ins.,

846 F.2d at 199.

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Finally, rather than “functionally enjoin[ing]” New Jersey’s enforcement of

its magazine ban (Response at 7), a stay of this appeal would allow New Jersey to

continue enforcement of its magazine ban, so there is absolutely no harm to

Defendants in awaiting guidance from the Supreme Court for a few months.

Defendants claim, falsely and bizarrely, that a stay of this appeal would allow people

arrested for trafficking in banned arms to “point to this ruling and argue they cannot

face prosecution while NYSRPA is pending.” (Response at 7). This argument is

specious. The district court upheld New Jersey’s magazine ban, which will continue

to operate throughout the period of a stay. Denial of a stay, however, could deprive

Plaintiffs of a reasoned decision based on the most recent binding authority available

and lead to unnecessary effort and expense for the parties and the Court, in addition

to running the risk of subjecting the citizens of New Jersey to an unconstitutional

law.

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CONCLUSION

For the foregoing reasons, this Court should stay these proceedings pending

the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v.

City of New York.

Dated: November 25, 2019 Respectfully submitted,

/s/ John Parker Sweeney

John Parker Sweeney
Attorney for Plaintiffs-Appellants

John Parker Sweeney

James W. Porter, III
Marc A. Nardone
Candice L. Rucker
Bradley Arant Boult Cummings LLP
1615 L Street N.W., Suite 1350
Washington, D.C. 20036
Telephone: (202) 393-7150
jsweeney@bradley.com

Daniel L. Schmutter
Hartman & Winnicki, P.C.
74 Passaic Street
Ridgewood, N.J. 07450
Telephone: (201) 967-8040
dschmutter@hartmanwinnicki.com

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CERTIFICATE OF SERVICE

I hereby certify that on November 25, 2019, I filed the foregoing with the
Clerk of the Court via CM/ECF, which will serve the following counsel of record:

Jeremy Feigenbaum George C. Jones

Stuart M. Feinblatt John H. Suminski
Office of Attorney General of New Jersey McElroy Deutsch Mulvaney
25 Market Street & Carpenter
Richard J. Hughes Justice Complex 1300 Mount Kimble Ave.
Trenton, NJ 08625 P.O. Box 2075
jeremy.feigenbaum@law.njoag.gov Morristown, NJ 07962
stuart.feinblatt@law.njoag.gov gjones@mdmc-law.com
jsuminski@mdmc-law.com
Bryan E. Lucas
Evan A. Showell Carmine Richard Alampi
Office of Attorney General of Jew Jersey Jennifer Alampi
124 Halsey Street Alampi & Demarrais
P.O. Box 45029 One University Plaza
Newark, NJ 07102 Suite 404
bryan.lucas@law.njoag.gov Hackensack, NJ 07601
evan.showell@law.njoag.gov calampi@alampi-law.com
jalampi@alampi-law.com

Respectfully submitted,

/s/ John Parker Sweeney

John Parker Sweeney
Attorney for Plaintiffs-Appellants