Legal Docket: Ghost guns and lawyer fees

NICK EICHER, HOST: It’s The World and Everything in It for this 14th day of October, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

And today just as we’ve done for 11 years straight we begin covering all of the oral arguments this term of the U.S. Supreme Court! And our promise to you is if you listen each Monday now through June, you’ll hear something about everything.

EICHER: So, two are on the docket for today and the first one is that gun case Jenny Rough mentioned last week as one to watch.

REICHARD: It is. And it begins with a simple question, what is a gun?

The case starts there because the issue concerns so-called ghost guns. These are firearms assembled from parts purchased online. They’re popular with hobbyists, for sure.

But they are especially popular with criminals.

That’s because they lack serial numbers and therefore cannot be traced by traditional methods when discovered at a crime scene.

And they require no background checks to purchase, either.

EICHER: The backstory here is that law enforcement saw a huge uptick in ghost guns used in violent crimes. Court documents show that the Bureau of Alcohol, Tobacco, Firearms, and Explosives, had a dismal record in tracing unserialized firearms. Specifically, the ATF had a success rate of less than 1 percent for the five years between 2016 and 2021.

REICHARD: So, in 2022, ATF issued a rule that says federal laws governing the sale of firearms also apply to ghost guns.

Here’s what the Gun Control Act statute defines as a firearm: “any weapon which will or is designed to or may readily be converted” into a functional firearm.

ATF says a ghost gun fits that definition.

EICHER: But five parties including a maker of ghost guns sued ATF. They argue assorted parts do not constitute a weapon, as defined in the Gun Control Act. So the agency exceeded its authority in making a rule to include guns made from parts in a kit.

REICHARD: At the Supreme Court, their lawyer, Pete Patterson, referred to another case to make his point:

PETE PATTERSON: There definitely has been a sea change by the agency here. The agency projected that its rule would put 42 out of 43 unlicensed manufacturers out of business. And what the agency said in the Syracuse litigation was they said: "An unfinished frame or receiver does not meet the statutory definition of 'firearm' simply because it can be designed to or can readily be converted into a frame or receiver." That's the exact standard they've now adopted.

Therefore, he argued, precedent favors his client.

EICHER: On the other side, the Department of Justice for ATF. DOJ argues the rule simply requires kit makers to abide by the same rules as other commercial firearm makers and sellers.

Solicitor General Elizabeth Prelogar:

ELIZABETH PRELOGAR: The Gun Control Act imposes straightforward but essential requirements. Firearms sellers and manufacturers must mark their products with serial numbers, maintain sales records, and conduct background checks. The industry has followed those conditions without difficulty for more than half a century, and those basic requirements are crucial to solving gun crimes and keeping guns out of the hands of minors, felons, and domestic abusers.

REICHARD: Justice Clarence Thomas did a fact check on that:

JUSTICE THOMAS: You make a lot of the fact that this has been regulated for half a century. But it wasn't regulated in this way for a half century. What was the --the original reg, the previous reg?

Prelogar answered that ATF’s fundamental approach to defining “firearm” has not changed. It looks at different factors, like the time it takes to make it functional, the need for special tools, and the need to buy parts.

ATF consistently looks at how fast a frame or receiver can be made into a functioning gun.

EICHER: Here’s where court-watching gets entertaining: listening to the hypotheticals the justices and lawyers walk through.

First, Justice Samuel Alito:

JUSTICE ALITO: I want to stick with the definition of "weapon" for just a second.

PRELOGAR: Oh, sure.

ALITO: I'm going to show you. Here's a --here's a blank pad, and here's a pen, all right? Is this a grocery list?

PRELOGAR: I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.

Justice Amy Coney Barrett:

JUSTICE AMY CONEY BARRET: Would your answer change if you ordered it from HelloFresh and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?

PRELOGAR: Yes and I think that that presses on the --the more apt analogy here….

The goal here was to get at ordinary meaning. As in, how do we conceptualize a gun?

Are the parts of guns guns or are only fully intact guns guns? Here again is Elizabeth Prelogar:

PRELOGAR: Right. So I want to be very clear that we think that this is a matter of ordinary meaning that you don't need it to be a hundred percent complete. And that --I think that runs across the board. If I mentioned a bicycle, but it was missing pedals, as we explain in our brief, you would still recognize that for what it is, as a bicycle.

REICHARD: I heard more skepticism from the bench directed toward lawyer Patterson for the kit makers.

Now, this case bounced around in the lower courts a lot already and even got to the Supreme Court at one point. It previously struck down lower court decisions that blocked ATF’s ghost guns rule. Notably, Chief Justice John Roberts and Justice Amy Coney Barrett joined the three liberal justices to let ATF enforce the rule.

But the lower court struck the rule down again, so now the full case is before the Supreme Court.

My educated guess is that the ATF is going to prevail here. But even if it does, whether and how to regulate 3-D printed guns that are also untraceable is undoubtedly the next puzzle to solve.

EICHER: Alright, onto our second case today. This one is designed to answer the question: Who pays the lawyers?

And like so many other court battles, it comes down to the meaning of a single phrase … in this case: “prevailing party.”

In this country, the general rule is win or lose, each party pays his or her own legal bill. Generally.

But there are a few exceptions, civil-rights litigation, for example. That’s so civil-rights plaintiffs have access to the judicial system to vindicate their rights. If they win—meaning if they are the “prevailing party” —then they get attorneys’ fees paid, in addition to whatever other relief a court grants.

REICHARD: Here are the facts of this case.

Five people in Virginia challenged a state law that automatically suspended their driver’s licenses because they had unpaid court fines. They argued that violated their due process rights, because they received neither notice nor a hearing.

EICHER: The trial court granted the plaintiff drivers a preliminary injunction. Judges can issue these after a hearing based on limited evidence. And the preliminary injunction stays in force until the court can make a final decision later on with full evidence.

REICHARD: And here’s where this one gets interesting. The state didn’t appeal the preliminary injunction, so the plaintiffs got their driver’s licenses back, which is what they really wanted.

Around this same time, the state legislature repealed that automatic suspension law.

So, the plaintiff drivers asked for attorney fees. After all, from their point of view, they’d won. They were the prevailing party.

But the state doesn’t want to pay the attorney’s fees. They want each side to pay its own legal expenses.

Brian Schmalzbach is lawyer for the drivers:

BRIAN SCHMALZBACH: The winner of an unreversed favorable judgment and tangible relief from the court is a prevailing party under Section 1988.

We do encourage the Court to consult those contemporaneous legal dictionaries which do say that the party in whose favor a judgment is awarded is a prevailing party. It does not require a final judgment.

EICHER: The drivers are asking, how are they not the prevailing party when they have their requested relief and that’s never been reversed?

But lawyer Erika Maley for Virginia says the exact opposite:

ERIKA MALEY: A preliminary injunction is neither a final judgment nor a determination that the defendant is liable on the merits for violating federal law. It is simply a threshold prediction of the likelihood of success.

The lawyers jousted with the legal tools of the trade: text, history, precedent, what other circuits have said about it, and common sense.

REICHARD: However the court decides, the implications are a big deal. If you know you have to pay the other side’s attorney fees if you lose, the incentives change dramatically. You’ll think hard about whether the fight is worth the risk. And federal courts in recent years have acted like preliminary injunctions are final decisions in many ways, so this needs to be clarified once and for all.

And that’s this week’s Legal Docket!

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