Prior Panel Opinion at Preliminary Injunction Stage Was Law of the Case and Thus Binding on Second Appeal of Summary Judgment, Holds Third Circuit

In Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, No. 19-3142 (3d Cir. Sept. 1, 2020) – a constitutional challenge to the state’s ban on large capacity magazines (“LCMs”) – the panel holds that the first appellate decision in the case denying a preliminary injunction (910 F.3d 106, 111 (3d Cir. 2018)) binds the second panel reviewing summary judgment, under the “law of the case” doctrine.

The plaintiffs lost their initial effort to have the statute preliminarily enjoined, with the district court holding that the plaintiffs did not have a likelihood of success on the merits. It applied intermediate scrutiny to the challenged policy under the Second Amendment and found that “there was a reasonable fit between the Act and its stated object” of limiting mass public shootings. (The district court also rejected Takings Clause and Equal Protection claims under the Fifth and Fourteenth Amendments.)

On the first appeal, a divided panel reached the merits and held that the LCM ban did not burden core Second Amendment rights, citing five reasons: “(1) it does not categorically ban a class of firearms but is rather a ban on a subset of magazines; (2) it is not a prohibition of a class of arms overwhelmingly chosen by Americans for self-defense in the home; (3) it does not disarm or substantially affect Americans’ ability to defend themselves; (4) New Jersey residents can still possess and use magazines, just with fewer rounds; and (5) ‘it cannot be the case that possession of a firearm in the home for self-defense is a protected form of possession under all circumstances. By this rationale, any type of firearm possessed in the home would be protected merely because it could be used for self-defense.”

The case was remanded to the district court, where the state prevailed on summary judgment. The court reasoned that “the Third Circuit has issued a precedential decision that resolves all legal issues in this case and there remains no genuine disputes of material fact.”

On appeal, the plaintiffs argued that the first panel decision was not binding, either because it was decided at the preliminary injunction stage and not on a full record, or because it was clearly wrong and should be disregarded to prevent manifest injustice.

A divided panel affirms summary judgment. While agreeing that “the standards for obtaining a preliminary injunction and summary judgment are different,” the majority holds that the differing standards are immaterial when, as here, the first decision reaches the legal merits of the claim. “[T]he prior panel’s opinion immediately went beyond the question of likelihood of success and declared a holding on the merits. Again, it held very plainly that the Act does not violate the Second Amendment, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause …. In short, it addressed the ultimate merits of the dispute, as the plaintiffs rightly admit …. And the panel did so primarily on the basis of facts that are uncontested.”

To avoid the opinion’s binding effect, the plaintiffs noted that on the second appeal, “the State asked a motions panel of our Court to summarily affirm the District Court’s grant of summary judgment on remand but that the motions panel denied that request.” Plaintiffs suggested that this denial meant the first opinion was not binding. But pointing to the relevant Internal Operating Procedure, that panel rejoins that summary affirmance is discretionary, i.e., that the motions panel “may take summary action … if it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action” (quoting 3d Cir. I.O.P 10.6 (emphasis added)). The denial of such a motion is thus not itself binding. “Here, the order denying the motion for summary affirmance does not explain why the motion was being denied. Thus, even if the decisions of the merits panel and the motions panel were in conflict (which they are not), the merits panel is the one owed deference.”

The majority also rejects the invitation to overrule the first panel decision as clearly wrong. “There is certainly room for vigorous debate about the prior decision. The thorough dissent shows that. But whether we agree with the majority’s opinion or not, we cannot say that it is clearly wrong or manifestly unjust. Even if we ignore that many other circuit courts have reached the same conclusion as the prior panel, with respect to very similar laws, there is evident in the prior panel’s work thoughtful consideration of the record and the relevant legal principles. Whether the prior panel ultimately got things wrong is not the question now. The question is whether it went so far astray that its decision can be called clearly wrong and manifestly unjust. The answer to that is no. We are therefore bound to respect the decision rendered by the prior panel, which ends this appeal.”

Dissenting, Judge Matey would hold that the prudential law-of-the-case doctrine must yield to the Article III power (and attendant obligation) to decide a case. The dissent regards two issues as material to the disposition of the case and unresolved: “whether all ‘magazines’ enjoy the guarantee of the Second Amendment” and what constitutes a “large capacity magazine.”

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