We the Patriots, Inc. v. Grisham.
Nos. 23-2166, 23-2167, and 23-2185. 10/28/2024. D.N.M. Judge Kelly. Executive Order—Preliminary Injunction—Second Amendment—Fourteenth Amendment—Appellate Jurisdiction—Mootness—Standing.
October 28, 2024
Governor Grisham issued an executive order declaring a public health emergency in New Mexico, based on increased gun violence rates. The next day, the New Mexico Department of Health (Department) issued a public health order (PHO) restricting firearm possession (except for law enforcement or security officers) within cities or counties with high rates of violent crime, on state property, at public schools, and in public parks. Plaintiffs are three individuals and six membership advocacy organizations. Some plaintiffs moved for a temporary restraining order (TRO), and the district court issued a TRO enjoining some PHO sections. Two days later, the Department issued an amended PHO eliminating portions of the first PHO, and some plaintiffs requested ex parte TROs and preliminary injunctions directed at the amended PHO. But before the district court could rule on these requests, the Department issued the second amended PHO, restricting firearm carry in public parks and playgrounds in the City of Albuquerque (city) and Bernalillo County (county). Plaintiffs moved for a preliminary injunction to enjoin enforcement of the second amended PHO’s restriction on carrying firearms in public parks (the public parks restriction) and in playgrounds (the playgrounds restriction), arguing that there is no “historical tradition of firearm regulation” in public parks or playgrounds to justify such restriction. The district court denied plaintiffs’ motion on grounds that they failed to show a substantial likelihood of success on the merits, and plaintiffs appealed. Shortly thereafter, the district court issued to plaintiff Springer a preliminary injunction enjoining the full scope of the second amended PHO’s public parks restriction (the Springer injunction). The court denied the preliminary injunction as to the playgrounds restriction for lack of standing, and in the alternative, on the merits.
On appeal, plaintiffs challenged the district court’s denial of a preliminary injunction to enjoin the second amended PHO. Defendants maintained that the appeal is moot, arguing that a preliminary injunction in one case moots a subsequent request for similar relief. Here, plaintiffs have not shown that the Springer injunction—which provides the relief plaintiffs requested by preliminarily enjoining the full scope of the public parks restriction—does not extend to their alleged injuries, nor have they shown how further injunctive relief would redress any injury. Accordingly, the issue is moot, and the Tenth Circuit lacks jurisdiction over the appeal as it pertains to the public parks restriction.
As to the playgrounds restriction, plaintiffs argued that local firearm restrictions on the right to bear arms are unconstitutional under the New Mexico Constitution and are thus void and unenforceable. However, multiple city and county restrictions on firearm carry in public parks and playgrounds exist, and plaintiffs did not otherwise seriously challenge the validity of those separate restrictions.
Plaintiffs further asserted that the local restrictions do not deprive them of Article III standing because the penalties associated with violating local ordinances are different and the prohibitions are enforced by different entities, so a favorable decision would redress an injury. However, plaintiffs Smith and Donk failed to identify any specific playground that they plan to visit and did not identify whether such playgrounds are covered by city and county regulations. Plaintiffs have thus not demonstrated that enjoining enforcement of the playgrounds restriction would allow them to lawfully carry firearms in playgrounds and provide any meaningful relief.
Plaintiffs also base their standing on the penalties associated with violating the governor’s emergency order. But no plaintiff has stated whether they will violate the city and county ordinances, which are presumptively valid, that would remain even if they prevail in this action. Accordingly, plaintiffs failed to satisfy their burden of showing a likelihood of redressability regarding their request for preliminary injunctive relief, so they lacked standing to seek a preliminary injunction as to the playgrounds restriction.
The appeal challenging the order denying plaintiffs’ motion for a preliminary injunction was dismissed.