W. Clark Aposhian v. William Barr, et al.

CASE SUMMARY

May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals? Those questions are what this case is about.

A federal statute bars Americans from owning machine guns but does not preclude them from owning bump stocks. Firearms instructor Clark Aposhian lawfully purchased a bump stock, but on March 26, 2019, the Bureau of Alcohol, Tobacco, Firearms, and Explosives adopted a regulation changing the statutory definition of “machine gun” to include bump stocks. By rewriting the statute, ATF turned Mr. Aposhian and more than 500-thousand other law-abiding Americans into felons, subject to a 10-year prison sentence if they did not destroy or divest themselves of possession, even though owning a bump stock was lawful under the federal statute at the time of purchase.

NCLA represents Mr. Aposhian in challenging this unconstitutional rewriting of a federal statute. The case is not about whether bump stocks should be banned. Instead, it is about whether ATF acted lawfully in how it banned them. NCLA contends that agencies may not rewrite any statutes, let alone federal criminal statutes.

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CASE STATUS: The Tenth Circuit agreed to rehear the case en banc

CASE START DATE: January 16, 2019

DECIDING COURT: Tenth Circuit Court of Appeals

ORIGINAL COURT: United States District Court for the District of Utah

CASE DOCUMENTS

October 13, 2020 | Amicus Curiae Brief of Roger J. (“Jack”) Lapant, Jr., in Support of Neither Party

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October 12, 2020 | Motion for Leave to File and Brief of Amici Curiae Firearms Policy Coalition and Firearms Policy Foundation in Support of Appellant and Reversal

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October 12, 2020 | Brief for Amicus Curiae Due Process Institute in Support of Appellant on Rehearing En Banc

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October 7, 2020 | Brief of Amicus Curiae Cato Institute in Support of Plaintiff-Appellant on Petition for Rehearing En Banc

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October 5, 2020 | Plaintiff-Appellant’s Supplemental Brief in the United States Court of Appeals for the Tenth Circuit

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September 4, 2020 | Order for Rehearing En Banc in the United States Court of Appeals for the Tenth Circuit

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July 27, 2020 | Reply Brief in Support of Petition for Rehearing En Banc

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June 25, 2020 | Order to Respond to Appellant’s Petition for Rehearing En Banc

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June 19, 2020 | Petition for Rehearing En Banc in the United States Court of Appeals for the Tenth Circuit

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May 7, 2020 | Panel Decision

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March 2, 2020 | Filed 28(j) Letter

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September 16, 2019 | Plaintiff-Appellant’s Reply Brief in the United States Court of Appeals for the Tenth Circuit

ATF’s Final Rule, Bump-Stock-Type Devices, 83 Fed. Reg. 66514, 66553-54 (Dec. 26, 2018), is an invalid attempt to rewrite an unambiguous criminal law in such a way as to impose retroactive criminal liability on more than half a million Americans. ATF understands that the Final Rule in unlawful as written. Its only hope of salvaging the rule is to recast it as something other than what it actually is– a mere interpretive gloss that should have no binding effect on anyone. Even then, ATF insists its new interpretation of the statute is the only possible one, despite the fact that such a position is contrary to what ATF has said for more than a decade…

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June 12, 2019 | Plaintiff-Appellant’s Brief-In-Chief in the United States Court of Appeals for the Tenth Circuit

Rightly or wrongly, Congress has not prohibited bump stocks, and it is unlawful for a prosecutorial entity, like the Bureau of Alcohol, Tobacco, Firearms and Explosives, to rewrite the law in Congress’ place. ATF’s Bump Stock Final Rule took an administrative shortcut that violates basic constitutional principles concerning who makes the law. Even if ATF’s goal is laudable, this Court has a constitutional obligation of its own to strike down ATF’s attempted legislative revision. Otherwise, the next national tragedy (or emergency), involving immigration, foreign trade, or domestic terrorism will result in Executive Branch efforts to usurp Congress’ legislative function in other areas….

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March 29, 2019 | Opposition to Motion for Injunction Pending Appeal

ARGUMENT

In reviewing a request for an injunction pending appeal, this Court “makes the same inquiry as it would when reviewing a district court’s grant or denial of a preliminary injunction.” Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001). Under that standard, a plaintiff must establish “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest.” Dine Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (internal quotation omitted). A plaintiff must demonstrate a “clear and unequivocal” right to relief. New Mexico Dep’t of Game & Fish v. U.S. Dep’t of Interior, 854 F.3d 1236, 1246 (10th Cir. 2017) (internal quotation omitted).

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March 21, 2019 | U.S. Court of Appeals For the Tenth Circuit Stay Order

This matter comes before the court on the Emergency Motion for Injunction Pending Appeal filed by appellant, Clark Aposhian. Mr. Aposhian seeks to enjoin appellees during the pendency of this appeal from enforcing against him Final Rule, Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018), which goes into effect March 26, 2019. Solely for the purpose of giving the court adequate time to properly consider the motion, the court will temporarily enjoin appellees from enforcing the Final Rule only as to Mr. Aposhian during the time required to adequately consider and rule on the pending motion. To further assist the court in its review, appellees are directed to file a response to the motion on or before March 29, 2019. Mr. Aposhian may file a reply within seven days of service of appellees’ response. Appellees are temporarily enjoined from enforcing the Final Rule against Mr. Aposhian until further order of the court.

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March 20, 2019 | Order Denying Plaintiff's Motion for Injunction Pending Appeal

Before the court is plaintiff W. Clark Aposhian’s Motion for Injunction Pending Appeal filed on March 19, 2019. (ECF No. 35). Mr. Aposhian’s motion follows the court’s denial of his motion for preliminary injunction (ECF No. 31) and the subsequent filing of Mr. Aposhian’s Notice of Interlocutory Appeal (ECF No. 32). For the reasons below, his Motion for Injunction Pending Appeal is denied.

Mr. Aposhian brings his motion under Rule 62(d) of the Federal Rules of Civil Procedure, which provides that “[w]hile an appeal is pending from an interlocutory order or final judgment that . . . refuses . . . an injunction, the court may . . . grant an injunction on terms for bond or other terms that secure the opposing party’s rights.”

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March 19, 2019 | Motion for Injunction Pending Appeal

III. ARGUMENT

Federal Rule of Civil Procedure 62(d) allows a district court to “grant an injunction” “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction[.]” “This rule does not limit the power of the appellate court or one of its judges or justices … to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending.” Fed. R. Civ. P. 62(g). Indeed, under Federal Rule of Appellate Procedure 8(a), which governs motions for injunctions pending appeal in circuit court, such motions typically must first be made in the district court. Fed. R. App. P. 8(a).

The standards governing injunctions pending an appeal under both rules are substantially the same. The movant must show (1) a likelihood of success on the merits; (2) irreparable harm if an injunction is not granted; (3) that the issuance of an injunction will not substantially injure the other parties to the proceeding; and (4) that the public interest favors the movant. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996) (stating injunction requirements under 10th Cir. R. 8.1).

The purpose of a stay or an injunction pending appeal is to preserve the status quo during the appeal. Thus, if the moving party “can meet the other requirements for a stay pending appeal, they will be deemed to have satisfied the likelihood of success on appeal element if they show ‘questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation.” McClendon, 79 F.3d at 1020 (internal citation and quotation marks omitted); see also In re Revel AC, Inc., 802 F.3d 558, 568–69 (3d Cir. 2015) (a sufficient degree of success for an injunction pending appeal is “a reasonable chance, or probability, of winning,” but “the likelihood of winning on appeal need not be more likely than not”) (internal citations and quotation marks omitted).1 Thus, where serious legal questions are presented, an injunction on appeal can be justified even when an injunction was not required at the trial level. See, e.g., O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002) (staying injunction on appeal without addressing the validity of the underlying injunction); Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 13–14 (D.D.C. 2014) (where decision “presented difficult and substantial legal questions … and was at times, a close one,” stay of injunction on appeal was necessary).

For the reasons that follow, Mr. Aposhian can satisfy all four elements of this test, and this Court should therefore grant an injunction pending appeal.

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March 19, 2019 | Emergency Motion for Injunction Pending Appeal

Mr. Aposhian, like every other bump stock owner in the U.S., was explicitly informed by ATF that the device he purchased was legal to own and operate. Now, without any intervening statutory change, ATF has changed its mind and retroactively ordered Mr. Aposhian to either destroy or surrender his lawfully acquired property by March 26, 2019 or face criminal prosecution. Thus, purchasers like Mr. Aposhian who relied on ATF’s explicit permission, but have not been informed of the pending retroactive ban, will be sent to federal prison starting March 27th.

This scenario distorts the constitutional order and is fundamentally at odds with the proper means of lawmaking. NCLA and Mr. Aposhian do not contest that Congress could prohibit the ownership of bump stocks, as for example, the City of Denver has already done. And lawmakers, or even agencies like the U.S. Sentencing Commission, could propose rules to punish criminals more harshly for committing crimes with bump stocks. Perhaps these entities should adopt such policies. But this litigation is not about whether bump stocks should be outlawed. This lawsuit solely deals with the question of whether ATF, by administrative fiat, can declare bump stocks to be machineguns retroactively without a valid statutory basis.

The district court erred because it concluded that ATF’s convenient interpretive gloss on a statute that was written in 1934, and has not been thought or found to be ambiguous for the last 85 years, was suddenly the “best reading” of the law, such that it would have been obvious to lawmakers in that year that, had they existed, bump stocks were “machineguns.” No matter that ATF, for more than a decade, has viewed the statute as not encompassing these devices.

This Court should issue an injunction pending appeal. Unless this Court acts, all parties have recognized that Mr. Aposhian, and all others similarly situated, will face irreparable injury. Moreover, because there is a substantial question as to the validity of the Final Rule, the merits favor an injunction. Finally, the balance of equities favors the injunction as Mr. Aposhian’s interest in not being bound by a criminal regulation lacking in a constitutional and valid statutory basis vastly outweighs the government’s interest in enacting the Final Rule without delay.

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March 15, 2019 | Memorandum Decision and Order Denying Motion for Preliminary Injunction

Congress began regulating machine guns with its passage of the National Firearms Act of 1934 (the “NFA”). That act defined such weapons as follows:

The term “machinegun”2 means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b). The Gun Control Act of 1968 (the “GCA”) incorporated this definition by reference into the criminal code. See 18 U.S.C. § 921(23) (“The term ‘machinegun’ has the meaning given such term in section 5845(b) of the National Firearms Act . . . .”). Today, with limited exceptions, it is “unlawful for any person to transfer or possess a machinegun.” 18 U.S.C. § 922(o).

In 2006, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “ATF”) ruled that a bump-stock-type device3 called the Akins Accelerator qualified as a machine gun. The Akins Accelerator employed internal springs to harness the weapon’s recoil energy to repeatedly force the rifle forward into the operator’s finger. In labeling the Akins Accelerator a machine gun, the ATF interpreted the statutory language “single function of the trigger” to mean “single pull of the trigger.” The inventor of the Akins Accelerator subsequently challenged this interpretation in federal court. After the district court rejected the challenge, the Eleventh Circuit

Court of Appeals affirmed, concluding that the ATF’s interpretation was “consonant with the statute and its legislative history.” See Akins v. United States, 312 F. App’x 197, 200 (11th Cir. 2009).

From 2008 to 2017, the ATF issued ten letter rulings in response to requests to classify bump-stock-type devices. Applying the “single pull of the trigger” interpretation, these rulings found that the devices at issue—including Mr. Aposhian’s Slide Fire device—indeed allowed a shooter to fire more than one shot with a single pull of the trigger. However, because the subject devices did not rely on internal springs or other mechanical parts to channel recoil energy like the Akins Accelerator, the ATF concluded that they did not fire “automatically” within the meaning of the statutory definition.

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February 11, 2019 | Plaintiff's Reply to Defendants' Memorandum in Opposition to Motion for Preliminary Injunction

ARGUMENT

“In determining whether an agency’s regulations are valid under a particular statute,” a Court must first ask whether “Congress delegated authority to the agency generally to make rules carrying the force of law.” New Mexico v. Dep’t of Interior, 854 F.3d 1207, 1221 (10th Cir. 2017) (quoting Carpio v. Holder, 592 F.3d 1091, 1096-97 (10th Cir. 2010)).

Only if the agency has authority to issue substantive regulations in the first place, may a court then inquire whether the regulation is consistent with the statute’s text and fills in an area of ambiguity. Id. This asks whether “Congress has directly spoken to the precise question at issue,” and, if so, “that is the end of the matter[.]” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842-43 (1984). At Chevron’s “step one,” an agency has “gap-filling power” only if is resolving “an ambiguity” in the statute. New Mexico, 854 F.3d at 1223 (quoting Lin-Zheng v. Attorney Gen., 557 F.3d 147, 156 (3d Cir. 2009) (en banc). If, however, the statute is not ambiguous, an agency may not “rewrite” a statute via regulation, and attempts to do so are “invalid and unenforceable” without considering “Chevron step two.” Id. at 1225, 1231.

Only if a statute is ambiguous, may a Court then consider whether the agency construction is entitled to deference. Id. Even then, a Court may not defer to an agency interpretation in a variety of circumstances. Deference is improper when agency action constitutes an unexplained change in interpretation, see Watt v. Alaska, 451 U.S. 259, 273 (1981), the agency interpretation runs counter to the agency’s expertise, United States v. Ochoa-Colchado, 521 F.3d 1292, 1298 (10th Cir. 2008), or the interpretation involves alleged ambiguity in a criminal statute. N.L.R.B. v. Oklahoma Fixture Co., 332 F.3d 1284, 1287 (10th Cir. 2003) (en banc).

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February 6, 2019 | Memorandum in Opposition to Motion for Preliminary Injunction

INTRODUCTION

A bump stock is an apparatus used to replace the standard stock on an ordinary semi-automatic firearm, thereby allowing a shooter to use the weapon at a rate of fire similar to that of an automatic weapon, like a machine gun. See 83 FR 66514. Over the last decade, DOJ’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) has issued classification determinations concluding that certain models of these devices are lawful firearms parts, unregulated at the federal level. Subsequently, many bump stocks have been readily available for private purchase, and hundreds of thousands have been sold. On October 1, 2017, several rifles with attached bump stocks were used in a devastating attack on concertgoers in Las Vegas, Nevada, in which hundreds of rounds of ammunition were rapidly fired by the perpetrator at a large crowd, killing 58 people and wounding approximately 500.

Machine guns have long been regulated under the National Firearms Act of 1934 (“NFA”), and since passage of the Firearm Owners Protection Act of 1986 (“FOPA”), the sale of new machine guns to members of the public has been prohibited. ATF has worked diligently to apply the definition of machine gun consistently to bump stocks. In 2006, ATF concluded that one model of bump stock, the “Akins Accelerator,” was not a machine gun, then quickly recognized that its determination was in error and reversed itself. Since 2008, ATF has concluded that some other bump stocks—which lacked a mechanical spring (or similar device) instrumental to the operation of the Akins Accelerator—were not machine guns. These decisions included one classification of a device submitted by the same manufacturer as the bump stocks used by the Las Vegas perpetrator.

After the Las Vegas attack, members of Congress and the public asked ATF to re-examine its past classification decisions for bump stocks to determine whether those decisions had been correct. In addition, President Trump instructed the Attorney General “to dedicate all available resources to…propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” Presidential Memorandum, Application of the Definition of Machinegun to “Bump Fire” Stocks and Other Similar Devices, 83 FR 7949 (Feb. 20, 2018) (“Definition of Machinegun”). The Department of Justice (“DOJ” or “Department”) proceeded to issue a notice of proposed rulemaking (“NPRM”), collect and review over 186,000 comments, and ultimately, to announce the Final Rule, which amends the definition of “machinegun” in DOJ’s regulations.1

The Department’s actions are fully consistent with the text of the statute and the APA. The statutory terms interpreted in the Final Rule (“automatically” and “single function of the trigger”) are undefined in the statute, and the Department has reasonably interpreted those terms, applied those definitions to bump stocks, and corrected past classification errors in light of those new definitions, as an agency is entitled to do. The Final Rule is therefore within DOJ’s rulemaking authority and the contents of the rule are neither arbitrary nor capricious. The Department’s interpretation is fully consistent with the text of the statute: once definitions of the undefined terms in the statutory definition have been provided, the statute is reasonably interpreted to include bump stocks as machine guns. Finally, it is entirely proper for the agency to have initiated a review of past actions due to interest by the public and elected leaders, including the President.

For these reasons, and because Plaintiff has also not established that the other factors required for entry of a preliminary injunction have been met, no injunction should issue.

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January 17, 2019 | Motion for Preliminary Injunction

I. RELIEF SOUGHT AND THE SPECIFIC GROUNDS FOR THE MOTION

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiff, W. Clark Aposhian, moves for a preliminary injunction prohibiting Defendants, Matthew Whitaker, Acting Attorney General of the United States, the United States Department of Justice, Thomas E. Brandon, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, from enforcing the Final Rule, Bump- Stock-Type Devices, 83 Fed. Reg. 66514, 66553-54 (Dec. 26, 2018), against him pending trial in this matter.

Unless enjoined from enforcing the Final Rule, which becomes effective on March 26, 2019, Mr. Aposhian will be forced to either destroy or surrender his lawfully acquired property to the ATF or face criminal prosecution. The Final Rule was enacted in violation of constitutional limits on the government’s authority as well as specific statutory limits on the ATF’s authority, and Mr. Aposhian will likely succeed on the merits in this case. Finally, the balance of equities favors the injunction as Mr. Aposhian’s interest in his constitutional and statutory rights vastly outweighs the government’s interest in enacting the Final Rule without delay.

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January 16, 2019 | Complaint

PRELIMINARY STATEMENT

The U.S. Constitution vests “All legislative Powers” in the Congress and directs that the President “shall take Care that the Laws be faithfully executed … .” U.S. Const. art I, § 1, and art. II, § 3 (emphasis added). It is therefore a basic tenet of our government that the Executive Branch may not, on its own, rewrite the law as it sees fit.

The Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives, have violated this basic premise of our Constitution by issuing the “Bump-Stock- Type Devices” Final Rule. Contrary to statutory language enacted by Congress (and signed by the President), and circumventing Congressional efforts to revise that language, this rule is scheduled to make hundreds of thousands of law-abiding Americans into felons in defiance of constitutional restraints on executive power. Whatever the merits of such a law, the Final Rule violates the fundamental constitutional order and thus cannot be tolerated.

Plaintiff, W. Clark Aposhian, like hundreds of thousands of his fellow Americans, legally purchased a bump-stock device with the ATF’s express approval. And even though the law written by Congress has not changed, the Department of Justice has ordered Mr. Aposhian to destroy or surrender his device or face criminal prosecution. The Constitution does not permit such lawmaking by executive fiat, and the rule must be permanently enjoined.

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PRESS RELEASES

October 6, 2020 | NCLA Wages Legal Battle Against ATF’s Unlawful Bump Stock Final Rule in Texas and Utah

Washington, DC (October 6, 2020) –The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is substantively rewriting federal criminal law with its Final Rule on bump stock-type devices, concluded the New Civil Liberties Alliance in two recent court filings against the ATF in lawsuits originally filed in Texas and Utah.

NCLA, a nonpartisan, nonprofit civil rights group, filed closing argument in Michael Cargill v. ATF in the District Court for the Western District of Texas last Friday. NCLA also filed a supplemental brief in the U.S. Court of Appeals for the Tenth Circuit late Monday evening in the case of Aposhian v. Barr after the court agreed last month to rehear the case en banc.

NCLA represents Michael Cargill of Austin, Texas and W. Clark Aposhian of Salt Lake City, Utah in the lawsuits against the ATF. Both lawsuits seek to overturn the federal ban on bump stocks issued Dec. 26, 2018 and to halt its enforcement.

At issue in both cases is whether the Slide Fire bump stock falls under the statutory definition of a “machinegun,” which is a firearm that shoots multiple times after only a single physical input. NCLA argues that in 2010 the ATF conducted a physical examination and test-fire of the Slide Fire bump stock and determined that it “was not regulated as a firearm under the Gun Control Act or the National Firearms Act.”

But after the tragic massacre in Las Vegas in October of 2017, the ATF rejected its own prior interpretation of the law and disregarded its substantive expertise in the mechanics and operation of firearms in order to alter federal criminal law.

NCLA contends that if ATF could criminalize bump stocks with its Final Rule, it would violate core limits on Congressional delegation of authority. Because it would involve a purely political determination of the scope of criminal liability, only Congress could pass a legislative rule that criminalizes the possession of bump stock devices. ATF’s purported exercise of that authority is therefore unconstitutional.

NCLA presented its case in Cargill at trial on September 9, 2020. This was the first legal challenge to the 2018 rule to proceed to trial. In Mr. Aposhian’s case, the U.S. Court of Appeals for the Tenth Circuit vacated an earlier panel decision on September 4, 2020, and it granted NCLA’s petition for rehearing en banc. In this case, NCLA argues that Chevron deference cannot be invoked by the court to decide a case when the government waives any reliance on the doctrine.

The Final Rule turned an estimated 520,000 bump stock owners around the country, like Mr. Cargill and Mr. Aposhian, into felons overnight unless they destroyed or surrendered their lawfully acquired Slide Fire bump-stock devices. NCLA has brought these lawsuits to ensure that our nation’s administrative agencies may not write new criminal laws and so that Congress takes responsibility for any such lawmaking.

NCLA released the following statement: 

“Mr. Cargill’s case is the first challenge to the bump stock ban to go to trial. At trial we learned what we suspected all along—the ban had nothing to do with how bump stocks work, or even how weapons are classified under existing law. It did, however, have everything to do with ATF’s effort to rewrite the law for political considerations. The court should reject ATF’s actions and declare the ban unlawful.”

– Caleb Kruckenberg, NCLA Litigation Counsel

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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September 4, 2020 | NCLA Earns En Banc Review from 10th Circuit in Bump Stock Ban Case, Including on Chevron Issues

Washington, DC (September 4, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group is celebrating a reprieve today in the case of Aposhian v. Barr, et al. after the U.S. Court of Appeals in the Tenth Circuit vacated the panel decision and granted NCLA’s petition for rehearing en banc. NCLA is challenging the ban on bump stocks issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that went into effect on March 26, 2019.

The panel decision had created a deep split among the circuits when it denied Mr. Aposhian’s appeal 2-1 in May, but it also broke ranks with prior decisions of the Tenth Circuit itself and with the U.S. Supreme Court. Chevron should not be applied to defer to an agency’s statutory interpretation when, as here, the government waives any reliance on it. Contrary to the panel decision in this case, three other circuits have held that Chevron deference is not a standard of review but is instead just one tool for statutory interpretation—and is thus subject to waiver.

The en banc court will also consider whether it should apply the constitutionally required Rule of Lenity instead of Chevron deference when agency action has both criminal and civil application. The now-vacated panel opinion had held that Chevron deference applied instead of the Rule of Lenity. This interpretation would violate fundamental due process considerations of notice and an opportunity to be heard. Although Mr. Aposhian is not charged with a crime, the statute he is challenging carries criminal penalties, so the Rule of Lenity applies.

Eleven active judges of the court will rehear the entire case afresh but will also specifically address the following questions, on which they have ordered supplemental briefing:

  1. Did the Supreme Court intend for the Chevron framework to operate as a standard of review, a tool of statutory interpretation, or an analytical framework that applies where a government agency has interpreted an ambiguous statute?
  2. Does Chevron step-two deference depend on one or both parties invoking it, i.e., can it be waived; and, if it must be invoked by one or both parties in order for the court to apply it, did either party adequately do so here?
  3. Is Chevron step-two deference applicable where the government interprets a statute that imposes both civil and criminal penalties?
  4. Can a party concede the irreparability of a harm; and, if so, must this court honor that stipulation?
  5. Is the bump stock policy determination made by the Bureau of Alcohol, Tobacco and Firearms peculiarly dependent upon facts within the congressionally vested expertise of that agency?

NCLA released the following statements: 

“The full Tenth Circuit has recognized the troubling consequences of the panel’s prior decision. Chevron deference cannot guarantee a win for an agency even when the parties agree it doesn’t apply, because it contradicts the constitutional rule that criminal laws should be construed against the government. We look forward to the Court setting a major precedent limiting Chevron’s unconstitutional reach.”

— Caleb Kruckenberg, Litigation Counsel, NCLA 

“NCLA is grateful that the Tenth Circuit has recognized the importance of our client’s civil liberties at stake in this case. We are also delighted that the judges have decided to take a close look at several key Chevron-related issues that have surfaced. The bump stock ban illustrates some of the many problems with Chevron deference—including constitutional ones.”

— Mark Chenoweth, Executive Director and General Counsel, NCLA  

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July 28, 2020 | NCLA Bump Stock Ban Reply Brief Says 10th Circuit’s Chevron Waiver Ruling Deepens Circuit Split

Washington, DC (July 28, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a reply brief in the U.S. Court of Appeals for the Tenth Circuit to support its petition for full court review in the case of Aposhian v. Barr. NCLA argues that the panel majority committed legal error in its 2-1 decision denying Mr. Aposhian’s appeal challenging the ban on bump stocks issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The reply brief addresses the ATF’s flawed arguments against the petition for rehearing.  

For example, in opposing Mr. Aposhian’s request for en banc review, the government has argued that upholding the government’s waiver of Chevron deference could create a conflict among the circuits. But a decision issued earlier this month by the Ninth Circuit Court of Appeals directly conflicts with the Aposhianpanel’s decision, thereby eliminating the government’s rationale for denying rehearing in the Tenth Circuit.  

According to the Ninth Circuit, Chevron should not be applied to defer to an agency’s statutory interpretation when, as here, the government waives any reliance on it. The Ninth Circuit has now joined at least two other circuits in holding that Chevron deference is not a standard of review but is instead just one tool for statutory interpretation—and is thus subject to waiver.  

The Aposhian panel majority also erred by disregarding the rule of lenity. When a criminal statute is ambiguous, the rule of lenity dictates that the law be interpreted to the benefit of the criminal defendant. Any other interpretation risks violating fundamental due process considerations of notice and an opportunity to be heard. Although Mr. Aposhian is not charged with a crime, the statute he is challenging carries criminal penalties, so the rule of lenity applies to it.  

Not only has the panel created a deep split amongst the circuits, but it also broke ranks with prior decisions of the Tenth Circuit itself and with the U.S. Supreme Court. If the Tenth Circuit denies en banc review, Mr. Aposhian will either have to appeal the denial of his preliminary injunction to the U.S. Supreme Court or return to federal district court for a trial on the merits. 

NCLA released the following statements: 

 “After fighting against the Court’s erroneous invocation of Chevron deference throughout this case, ATF has now stuck its head in the sand and asked the en banc Court not to step in. This case typifies Chevron deference run amok, and the full Court must fix the panel’s wayward decision.”   

— Caleb Kruckenberg, Litigation Counsel, NCLA  

“The Court headed down the wrong road when it sought to convert the Chevron decision into a standard of review that is not waivable.  Chevron deference is bad enough.  It becomes even worse if a court can invoke it even when the government disclaims it.”   

— Harriet Hageman, Senior Litigation Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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June 19, 2020 | NCLA Asks 10th Cir. to Reverse Panel’s Failure to Follow Chevron Precedent in Bump Stock Ban Case

Washington, DC (June 19, 2020) – The New Civil Liberties Alliance today filed a petition for rehearing en banc in the U.S. Court of Appeals for the Tenth Circuit in the case of W. Clark Aposhian v. William Barr, Attorney General of the United States, et al. NCLA is seeking review from the full Court, arguing that the panel majority erred in last month’s 2-1 decision to deny NCLA client Clark Aposhian’s appeal. Aposhian, who last spring was the “last man in America” to own a bump stock legally, is challenging the ban on bump stocks issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as an unlawful effort to amend a statute via regulation.

Mr. Aposhian’s en banc Tenth Circuit appeal argues that the panel majority committed two main legal errors. First, the panel applied Chevron deference even though ATF specifically waived that argument. Chevron is a judicial doctrine that usually allows courts to defer to agency interpretations of ambiguous statutes. ATF presumably refused to invoke Chevron deference, because it agrees with Mr. Aposhian that Chevron does not apply to the interpretation of criminal laws. Second, the panel majority disregarded the rule of lenity. When a criminal statute is ambiguous, the rule of lenity dictates that the law be interpreted to the benefit of the criminal defendant. Although Mr. Aposhian is not charged with a crime, the statute he is challenging is a criminal law, so the rule of lenity applies. Instead, the panel majority applied Chevron deference to resolve the alleged ambiguity in the statute. U.S. Supreme Court precedent and prior Tenth Circuit precedent point in the opposite direction from what the panel majority held on both of these issues.

As Judge Joel Carson wrote in his dissenting opinion in May, by “turning a blind eye to the government’s request and applying Chevron anyway—the majority placed an uninvited thumb on the scale in favor of the government.” Mr. Aposhian’s appeal asks the Tenth Circuit to rehear this case and reverse these two legal errors.

The potential consequences of this appeal are dire. ATF has made bump stocks illegal to possess through a Final Rule issued without statutory or constitutional authority. In so doing, ATF turned 500,000 innocent purchasers into felons (but gave them 90 days to turn in or destroy their devices to avoid prosecution).

The Final Rule reinterpreted the words “automatically” and “single function of the trigger” in the National Firearms Act to classify bump stocks as “machine guns.” Even though ATF had previously approved bump stocks for sale, and determined that they were not machine guns, the new Rule treats owning a bump stock the same as owning an actual machine gun, which is a federal crime punishable by up to 10 years in prison. The panel’s decision upholding the rule would allow the same agency tasked with enforcing the law to create new criminal liability via regulation. If the Tenth Circuit denies en banc review, Mr. Aposhian will either have to appeal the denial of his preliminary injunction to the U.S. Supreme Court or return to federal district court for a trial on the merits.

NCLA released the following statements:

“The panel refused to interpret the law independently and instead applied Chevron deference even when ATF itself understood that it would be improper to do so. The full court should take this case and do what judges are supposed to do—decide for themselves what the law Congress wrote means.”

 — Caleb Kruckenberg, Litigation Counsel, NCLA

“The panel’s decision relied upon Chevron deference to avoid answering the only question before it: did ATF have the legal authority to redefine bump stocks as ‘machineguns.’ Unwilling to support ATF’s nonsensical arguments, the panel could only affirm the agency’s decision by ‘deferring’ to an argument that the agency never made, while refusing to ‘defer’ to the argument that it did make. This is the topsy-turvy world you get when courts allow agencies to legislate.”

 Harriet Hageman, Senior Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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May 7, 2020 | Tenth Circuit Disregards Its Own Precedent in Appeal of Denied Challenge to ATF’s Bump Stock Ban

Washington, DC (May 7, 2020) – Today, the U.S. Court of Appeals for the Tenth Circuit invoked the Chevron doctrine to deny NCLA client Clark Aposhian’s appeal of his challenge to ATF’s bump stock ban in a 2-1 vote. Mr. Aposhian, who last spring was the “last man in America” to own a legal bump stock, thinks that only Congress should be able to ban bump stocks. Instead, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made them illegal to possess through a Final Rule issued without statutory or constitutional authority. In so doing, ATF turned over 500,000 innocent purchasers into felons (but gave them 90 days to turn in or destroy their devices to avoid prosecution).

The Final Rule reinterpreted the words “automatically” and “single function of the trigger” in the National Firearms Act to classify bump stocks as “machine guns.” Even though ATF had previously approved bump stocks for sale, and determined that they were not machine guns, the new Rule treats Mr. Aposhian’s conduct as a federal crime punishable by up to 10 years in prison.

Mr. Aposhian’s appeal raised key issues about whether an agency can create such a retroactive ban and about the Chevron doctrine, which instructs courts to defer to agencies’ reasonable statutory constructions—but only if the court first concludes that the statute is ambiguous. Mr. Aposhian’s brief argued that the National Firearms Act is not ambiguous, which is the same position the Department of Justice had taken in every prior machine gun possession case it has prosecuted in the last 30+ years. His appeal also asked whether the Chevron doctrine applies when the agency repudiates it and whether the Chevron doctrine may apply to criminal regulations given that the rule of lenity requires courts to construe ambiguous laws away from imposing criminal liability.

In its court filings, ATF admitted that it lacked rulemaking authority under the Gun Control Act and the National Firearms Act to issue a legislative rule banning bump stocks. That is why ATF insisted that its Final Rule was an “interpretive” rule rather than a “legislative” rule. Yet the Tenth Circuit ignored that crucial admission, treated the rule as a legislative rule anyway, and upheld it. ATF also agreed, in recognition of the rule of lenity, that if the law was unclear the Court could not read it to make innocent Americans into criminals. Yet the Tenth Circuit disregarded its own precedent to decide that the rule of lenity does not apply to regulations with criminal consequences.

In today’s opinion, written by Judge Mary Beck Briscoe, a majority of the Court not only allowed upheld an unlawful legislative rule, but it bent over backward to “defer” to the ATF’s reading of the law, even though the agency’s brief refused to invoke Chevron. The court also disregarded Judge Briscoe’s own prior opinion holding that the rule of lenity forecloses deference to an agency’s interpretation of an ambiguous statute. In his dissent, Judge Joel Carson recognized that deferring to ATF under Chevron “place[d] an uninvited thumb on the scale in favor of the government.”

NCLA will continue to oppose the Final Rule in this case and in Cargill v. Barr.

NCLA released the following statements:

“The Court has allowed ATF to take the lawmaking decision away from Congress and create brand new criminal laws in defiance of the proper constitutional order. Judge Carson was right to say that both the ATF rule and the majority’s decision ‘subvert[] the constitutional prerogatives of each branch of government’ by rewriting the clear language of a law passed by Congress.”

—Caleb Kruckenberg, Litigation Counsel, NCLA

“Today’s Aposhian decision from the Tenth Circuit once again reveals how pernicious the Chevron doctrine really is. Even where the statute was not ambiguous, even where the government refused to invoke it, and even where the rule of lenity forbade it, Chevron reared its monstrous head.”

—Mark Chenoweth, General Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online at NCLAlegal.org.

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September 16, 2019 | ATF Admits It Lacked Authority to Issue Legislative Rule, NCLA Condemns the Agency’s Attempt to Ban Bump Stocks Anyway

Washington, D.C. – Congress has not prohibited bump stocks, but the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made them illegal with a Final Rule issued without statutory authority. In a noteworthy development, ATF’s latest court filing admits that it lacked rulemaking authority under the Gun Control Act and National Firearms Act to issue a legislative rule. ATF thus now agrees with NCLA that the district court below was wrong on this point of law.

Today, the New Civil Liberties Alliance filed a brief on behalf of client Clark Aposhian, asking the U.S. Court of Appeals for the Tenth Circuit to reject ATF’s remaining defenses of the Final Rule, restore Mr. Aposhian’s constitutional rights, and grant him a preliminary injunction to possess his lawfully acquired property. Specifically, NCLA argues that ATF’s interpretation is not the best reading of the statute and that the Court of Appeals cannot properly invoke the Chevron judicial deference doctrine to defer to ATF’s interpretation.

This case is not about gun control. Rather, Mr. Aposhian’s appeal raises key issues about how an agency may create such a ban—that is, whether agency regulations may contradict a statute passed by Congress. The appeal also challenges the notion that a mere interpretive rule can bind third parties, such as owners of bump stocks.

The bump stock rule made it a new federal crime to own a bump stock, even one purchased with ATF’s prior permission. ATF knows it didn’t have the authority to enact such a law. Instead of defending the rule, ATF now pretends the ban is just a recommendation for the public. NCLA is confident the court will see through ATF’s games and strike down this invalid rule.” Caleb Kruckenberg, Litigation Counsel

ATF is caught between a rock and a hard place. The agency lacks legal authority to issue a so-called legislative rule, but a mere interpretive rule is not legally allowed to bind any third parties outside the government. By ordering half a million bump stock owners to surrender their devices—or face prosecution—ATF has acted in a completely unconstitutional fashion. It is high time for the federal courts to put a stop to this regulatory nonsense.”
Harriet Hageman, Senior Litigation Counsel

Congress could have passed bipartisan legislation making bump stocks illegal. Instead, ATF has tried to ban them via administrative action in the Bump Stock Final Rule. This Court has a constitutional obligation to strike down ATF’s attempted legislative rewrite. Otherwise, the Executive Branch will usurp Congress’ legislative function in other areas, and the Constitution’s careful limits on how laws are made will be undone.

Update: Mr. Aposhian was forced to surrender his bump stock temporarily on May 6, 2019, while his appeal is being heard. NCLA also filed a separate lawsuit with the U.S. District Court for the Western District of Texas on behalf of Michael Cargill, a resident of Austin, Texas who turned in his bump stock to the local ATF office while his case is pending before that court.

For a full case summary click here.

 

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.

June 12, 2019 | NCLA Asks Tenth Circuit to Determine Who Has the Constitutional Right to Change the Law in Bump Stock Case

Washington, DC, June 12, 2019 – Whom does the Constitution allow to change the law when tragedy strikes? Today the New Civil Liberties Alliance filed a brief on behalf of NCLA client Clark Aposhian, asking the U.S. Court of Appeals for the Tenth Circuit to determine that it is unlawful for a prosecutorial entity, like the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to rewrite the law in Congress’ place. This case is not about gun control. Rather, the lawsuit raises key issues about whether agency regulations may contradict a statute passed by Congress, and whether an administrative agency can retroactively punish a product’s lawful purchasers, who may not hear about the ban before it turns them into felons when Congress has never done so.

Rightly or wrongly, Congress has not yet prohibited bump stocks. But when a deranged gunman opened fire on a crowd in Las Vegas, Nevada on October 1, 2017, using weapons equipped with scopes, 100-round magazines and bump stocks, a legislative response certainly could have been considered. What transpired instead was a Bump Stock Final Rule banning the devices—an administrative shortcut by ATF that violates basic constitutional principles concerning who makes the law. Even if ATF’s goal is laudable, this Court has a constitutional obligation of its own to strike down the administrative agency’s attempted legislative rewrite. Otherwise, the Executive Branch will usurp Congress’ legislative function in other areas, and the Constitution’s careful limits on how laws are made will be undone.

“The ATF has attempted to rewrite the law and declared that as many as 500,000 Americans are now federal felons even though they lawfully purchased bump stocks with the ATF’s prior approval. The Constitution doesn’t allow prosecutors to change the criminal laws to suit their sense of what the law should say. The bump stock ban threatens to set a dangerous precedent that prosecutors, not lawmakers, have the final say about what makes something a crime.”—Caleb Kruckenberg, Litigation Counsel

Mr. Aposhian was forced to surrender his bump stock on May 6, 2019, while his appeal is heard. NCLA also filed a separate lawsuit with the U.S. District Court for the Western District of Texas on behalf of Michael Cargill, a resident of Austin, Texas who turned in his bump stock to the local ATF office while his case is pending before the court.

For a full case summary click here.

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.

Contact:

Judy Pino
New Civil Liberties Alliance
202-869-5218
judy.pino@ncla.legal

April 3, 2019 | NCLA Releases Video Telling Story of the Only Man in America Allowed to Keep His Bump Stock

Washington, DC (GLOBE NEWSWIRE) – Today, the New Civil Liberties Alliance released a video outlining the story of NCLA’s client, W. Clark Aposhian, the only man in America legally allowed to keep his bump stock. Mr. Aposhian, of Salt Lake City, Utah, is challenging the bump stock ban issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). NCLA believes ATF acted unlawfully and that only Congress, not administrative agencies, can write criminal laws such as the ATF’s rule banning bump stocks.

The U.S. Court of Appeals for the Tenth Circuit issued a temporary stay of the ban last month which only applies to Mr. Aposhian. The stay prevents the enforcement of the bump stock ban against him while the Court considers his Emergency Motion for Preliminary Injunction Pending Appeal.

Excerpts from the video:

“This case is not about bump stocks. This isn’t a case about whether bump stocks should or shouldn’t be regulated. This case is about who gets to write the law.”

“This case is a perfect example, unfortunately, of what we call the Administrative State. And what I mean by that is, this is a situation where we have an administrative agency, rather than Congress, trying to rewrite the law.”
Caleb Kruckenberg, Litigation Counsel at NCLA

 I’m a proud American, and this is not the way things are supposed to be done in the United States. The American people have a deal with the government, that we know the laws and we obey the laws. But the very people that we expect to be examples of obeying the law, are not doing it. And we will hold them accountable.”W. Clark Aposhian, Client

NCLA also filed a separate lawsuit with the U.S. District Court for the Western District of Texas on behalf of Michael Cargill, a resident of Austin, Texas who turned in his bump stock to the local ATF office while his case is pending before the court.

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.

March 21, 2019 | NCLA Wins Temporary Stay of Bump Stock Ban from U.S. Court of Appeals for the Tenth Circuit

Washington, DC, March 21, 2019 (GLOBE NEWSWIRE) — Today, the U.S. Court of Appeals for the Tenth Circuit issued a temporary stay of the bump stock ban announced late last year by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The stay only applies to NCLA’s client, W. Clark Aposhian, a resident of Salt Lake City, Utah who has challenged the ban in federal court. The stay prevents the enforcement of the bump stock ban against Mr. Aposhian while the Court considers his Emergency Motion for Preliminary Injunction Pending Appeal.

The New Civil Liberties Alliance filed the preliminary injunction motion on Mr. Aposhian’s behalf on March 19th. The case is not about whether bump stocks should be banned. Instead, it is about whether ATF acted lawfully in the way it banned them. NCLA asked the Court of Appeals to halt enforcement of the ban while it considers NCLA’s appeal of a district court order that denied a preliminary injunction last week. ATF’s ban goes into effect nationwide on March 26th.

NCLA contends in this lawsuit that only Congress, not administrative agencies, can write criminal laws such as ATF’s rule banning bump stocks. The lawsuit raises key issues about the proper role of administrative agencies, whether agency regulations may contradict a statute passed by Congress, and whether an agency can retroactively punish lawful purchasers of a device who may not hear about the ban before it turns them into felons.

The Court’s decision to stay the bump stock rule is an important recognition of the high stakes in this case. While the order is limited, the Court recognizes that Mr. Aposhian has raised a substantial basis to question the rule’s validity. The Court sees that it would be unfair to allow the rule to take effect without giving him an opportunity to fully present the issue to the Court.

“Today the Court of Appeals told the ATF that it could not rush through the bump stock ban without meaningful judicial review. The Court understands the stakes and is refusing to let an innocent owner be declared a felon, as scheduled.” —Caleb Kruckenberg, Litigation Counsel

Last Friday Judge Jill Parrish of the U.S. District Court for the District of Utah denied preliminary injunctive relief to Mr. Aposhian in his suit against the ATF challenging the Final Rule.

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.

March 20, 2019 | NCLA Appeals Ban on Bump Stocks to the U.S. Court of Appeals in Denver

Washington, DC, March 20, 2019 (GLOBE NEWSWIRE) — The New Civil Liberties Alliance (NCLA) is asking the U.S. Court of Appeals for the Tenth Circuit to halt enforcement of the federal ban on bump stocks before it becomes effective March 26th because there is no statutory authority for the ban. NCLA expects a ruling on its emergency stay motion within 48 hours.

Bump stocks are controversial, as they allow semi-automatic weapons to shoot more rapidly. However, this litigation is not about whether bump stocks should be outlawed but concerns whether a federal agency can outlaw them without Congress. NCLA’s Emergency Motion for Injunction Pending Appeal explains that the Bureau of Alcohol, Tobacco, Firearms and Explosives (better known as ATF) cannot declare bump stocks to be machineguns retroactively—and without a valid statutory basis.

NCLA contends that only Congress, not an administrative agency like ATF, can write criminal laws such as the Final Rule. The lawsuit also raises key issues about the scope of administrative power. Dozens of previous federal court decisions have held that this statute is not ambiguous, which deprives the Department of Justice and ATF of the ability to rewrite it. Furthermore, the longstanding Rule of Lenity commands that any ambiguity in the definition of “machinegun” be construed in favor of a potential criminal defendant.

By making the ban retroactive, ATF also creates an unfair surprise for over 500,000 innocent citizens who purchased these devices legally and may not hear about the ban before it turns them into felons subject to 10-year prison sentences. Congress historically has shied away from retroactive bans and crafted shorter prison sentences for owning banned accessories than for owning banned weapons.

“The Congress that wrote the National Firearms Act in 1934 would not have considered bump stocks to be machine guns. The text of this statute is very clear. ATF had no power to issue the Final Rule because there was no ambiguity for it to resolve. It is our hope that the Tenth Circuit will agree.” —Caleb Kruckenberg, NCLA Litigation Counsel

“This case is much bigger than whether bump stocks are banned. If agencies like the ATF can rewrite statutes by administrative fiat every time the political tide changes, then we no longer have rule of law in this country. We have rule by agency.” —Steve Simpson, NCLA Senior Litigation Counsel

Last week Judge Jill N. Parrish of the U.S. District Court for the District of Utah, denied preliminary injunctive relief to NCLA’s client, plaintiff Clark Aposhian, in his lawsuit against the ATF challenging the Final Rule.

About NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org

February 28, 2019 | D.C. Court’s Refusal to Enjoin Bump Stock Final Rule Underscores the Problem with Chevron Deference NCLA believes courts must apply the rule of lenity instead

WASHINGTON, DC (February 28, 2019)—On Monday U.S. District Judge Dabney L. Friedrich rejected preliminary injunction requests in a pair of consolidated lawsuits, Guedes v. ATF and Correa v. Barr, seeking to block the Bump Stock-type Devices Final Rule. Several other cases await decision across the country, including one brought in the District of Utah by the New Civil Liberties Alliance on behalf of its client Clark Aposhian, who is chairman of the Utah Shooting Sports Council.

The Rule issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) bans the possession of all bump-fire stocks and takes effect March 26th, turning an estimated 520,000 owners of bump stock devices into felons unless they destroy or surrender the accessory by that date.

Judge Friedrich’s disappointing decision mostly turns on her rote application of the Chevron doctrine. Under that misguided precedent, judges are instructed to defer to agencies’ statutory interpretations where the judge deems the statute ambiguous and an agency’s interpretation of it reasonable.

NCLA’s lawsuit raises key issues not raised in the D.C. litigation, including the fact that judges cannot defer to agencies’ interpretations of criminal statutes under Chevron. Instead, the longstanding Rule of Lenity requires courts to interpret ambiguities in such statutes in favor of criminal defendants.

Furthermore, NCLA’s Complaint shows that dozens of previous federal court decisions have held that this statute is not ambiguous, which deprives the Department of Justice and ATF of the ability to rewrite it. The lawsuit also points out that Congress did not ban machine guns themselves retroactively, so only an unreasonable reading of the statute would allow a regulation based on that statute to ban bump stocks retroactively.

NCLA’s hearing in federal district court occurred on February 14th regarding its request for a Preliminary Injunction, which is currently awaiting a decision.

“The Rule of Lenity does not allow an overstepping federal agency to rewrite a federal criminal statute and turn half a million law-abiding citizens into felons. Without the ATF’s ability to hide behind the Chevron doctrine, NCLA is confident that the bump stock rule will be rejected.” —Caleb Kruckenberg, NCLA Litigation Counsel

“Judge Friedrich’s decision once again underscores the problem with Chevron deference. Federal judges have developed a bad habit of deferring to federal agencies. If Congress wants to ban bump stocks, then Congress has to pass a law to do so—especially to ban them retroactively.”
—Mark Chenoweth, NCLA Executive Director and General Counsel

About NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bonoadvocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
For more information visit us online: NCLAlegal.org

Media Inquiries: Please contact Judy Pino, 202-869-5218 or email Judy.Pino@NCLA.legal

January 17, 2019 | NCLA: The Bump Stock Buck Must Stop with Congress, Not the President

WASHINGTON, DC, Jan. 17, 2019 — Firearms instructor W. Clark Aposhian of Utah is a law-abiding citizen, but under the “Bump-Stock-Type Devices” Final Rule, on March 26th, he will become a felon subject to a 10-year prison sentence unless he destroys or surrenders his Slide Fire bump-stock device. The same is true for owners of the estimated 520,000 other bump-stock devices legally acquired over the last decade.

The New Civil Liberties Alliance filed a Complaint against Acting Attorney General Matthew Whitaker, the U.S. Department of Justice (DOJ), Acting Director Thomas Brandon of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the ATF itself. The Complaint filed on behalf of Aposhian, would bar enforcement of the “Bump-Stock-Type Devices” Final Rule against him and similarly situated individuals in the District of Utah. NCLA also filed a request for a Preliminary Injunction today which seeks to stop the ban from coming into effect as scheduled.

Congress has never acted to outlaw these devices. In fact, as Senator Dianne Feinstein (D-CA) recently stated, “Until March 2018, ATF maintained that bump stocks could not be banned through administrative action.” She also recognized that “Legislation is necessary” or any ban will not be “protected from legal challenges.”

NCLA wholeheartedly agrees with Mr. Aposhian that DOJ has no constitutional or statutory authority to create new criminal laws. NCLA takes no position on bump-stock devices, as we proclaim no expertise on the various policy reasons given for banning them. But the wisdom of the policy is irrelevant to the impropriety of actions taken by DOJ and ATF. NCLA has brought this lawsuit to ensure that our nation’s administrative agencies operate constitutionally, and that Congress takes responsibility for lawmaking.

“However well-intentioned, neither the President nor his Department of Justice can act by executive fiat to change the law. Congress—and only Congress—can convert lawful activity into unlawful activity. In this case, Congress has never prohibited the possession of bump-stock devices by statute, so this rule violates the Constitution.” 
—Caleb Kruckenberg, Litigation Counsel, NCLA

“The Constitution does not allow lawmaking by shortcut. New criminal laws must be passed by both houses of Congress and signed into law by the President. That did not happen here. If the courts permit the Attorney General to get away with passing this rule, which turns half a million Americans into felons overnight, via a pathway that is not in the Constitution, nothing will stop a rogue attorney general from turning millions more law-abiding citizens into felons in the future.”
—Steve Simpson, Senior Litigation Counsel, NCLA

About NCLA
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org

Media Inquiries: Please contact Judy Pino, 202-869-5218 or email Judy.Pino@NCLA.legal

OPINION

April 9, 2019 | Commentary: ATF ruling leaves Utah with the last bump stock standing

Originally published in the Salt Lake Tribune on April 9, 2019


Clark Aposhian, a resident of Utah, is now the last man in America who can legally own a bump stock.

Last month, a formal bump stock ban went into effect. The ban ordered anyone who lawfully purchased one of these devices to either surrender or destroy it, or else face felony prosecution.

Before the ban, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had recognized repeatedly that bump stocks are a lawful firearm accessory and are not machine guns, because a user of a bump stock still must engage the trigger once for every shot fired. In a 2013 letter to Congress, ATF explained that bump stocks “are not subject to the provisions of Federal firearms statutes” and “ATF does not have the authority to restrict their lawful possession, use, or transfer.”

In a surreal bit of doublethink, ATF now insists that every bump stock previously sold was always a machine gun. So, not only are bump stocks now banned, but the agency claims it could always have prosecuted the owners of these devices — even though they were sold with ATF letters of approval attached.

To reach this absurd conclusion, ATF had to promulgate a bump stock rule that changed the statutory definition of “machine gun.” Under the new rule, a semiautomatic weapon is a machine gun if the shooter fires by bumping the trigger instead of “pulling” it. The new rule also defines “automatic” fire to include firing that requires “additional physical manipulation” of the weapon between shots, which used to be considered “manual” fire.

Owners of bump stocks, including Aposhian, challenged the ban across the country. Recently a divided D.C. Circuit Court of Appeals denied a request to stop the rule from taking effect. The court relied on the “Chevron deference,” a principle that courts are required to “accept the agency’s construction of the statute, even if the agency’s reading differs from … the best statutory interpretation.” And the court went even further, saying ATF’s construction of the statute was still “reasonable” even though “its position that bump stock owners have always been felons” “is incompatible with the Rule’s terms.”

Notably, “the government expressly disclaimed any entitlement to Chevron deference” and “went so far as to indicate that … it would prefer that the Rule be set aside rather than upheld under Chevron.” This concession came because the government knows its reading of a criminal statute is not entitled to any deference.

But the court decided ATF was not allowed to waive Chevron deference and ruled in ATF’s favor on that basis, even though it would result in making half a million law-abiding citizens into criminals. This brazen abdication of judicial independence shows just how unlawful much of modern administrative activity is. Article I, Section 1 of the Constitution vests “all” legislative power in Congress. No part of the Constitution allows a law enforcement agency to rewrite a law it disagrees with, nor does it allow a federal court to sit idly by while that same agency prosecutes citizens for violating the new, made-up law.

Aposhian’s challenge continues. The Denver-based 10th Circuit Court of Appeals temporarily enjoined ATF “from enforcing the Final Rule against Mr. Aposhian” while his case proceeds, leaving him as the only private citizen with a legal bump stock. His case offers the best remaining hope for stopping lawmakers from passing the buck to the executive branch on this difficult issue.

Caleb Kruckenberg is Litigation Counsel at the New Civil Liberties Alliance, which has filed legal challenges to the bump stock ban that are pending in the 10th Circuit and the Western District of Texas.

April 5, 2019 | Will courts allow Congress to pass the bump stock buck?

Written by Caleb Kruckenberg
Originally published on The Hill

 

Following the tragic mass shooting in Las Vegas on Oct. 1, 2017, where the assailant reportedly used firearms equipped with bump stocks, lawmakers in both parties attempted to restrict these devices legislatively, to require them to be registered or banning their sale. These efforts did not succeed, and President Donald Trump ordered ATF to take action.

Last week a formal bump stock ban went into effect for the majority of the country. The ban ordered anyone who lawfully purchased one of these devices to either surrender or destroy it, or else face felony prosecution.

Before the ban, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had recognized repeatedly that bump stocks are a lawful firearm accessory and not machineguns, because a user of a bump stock still must engage the trigger once for every shot fired. In a 2013 letter to Congress, ATF explained that bump stocks “are not subject to the provisions of Federal firearms statutes” and “ATF does not have the authority to restrict their lawful possession, use, or transfer.”

In a surreal bit of doublethink, ATF now insists that every bump stock previously sold was always a machinegun. So, not only are bump stocks now banned, but the agency claims it could always have prosecuted the owners of these devices — even though they were sold with ATF letters of approval attached.

To reach this absurd conclusion, ATF had to promulgate a bump stock rule that changed the statutory definition of “machinegun.” Under the new rule, a semiautomatic weapon is a machinegun if the shooter fires by bumping the trigger instead of “pulling” it. The new rule also defines “automatic” fire to include firing that requires “additional physical manipulation” of the weapon between shots, which used to be considered “manual” fire.

As soon as the final rule was promulgated, it was challenged in courts across the country, including by the organization I work for: the New Civil Liberties Alliance. In the first decision on these cases, a federal judge in Washington, D.C. denied a preliminary request to stop the final rule from taking effect. Relying on so-called Chevron deference, the court concluded that it “must accept an agency’s authoritative interpretation of an ambiguous statutory provision if the agency’s interpretation is reasonable.” This means that even though ATF’s interpretation was not the “best reading” of the statute, the court decided it had to accept it.

In other pending bump stock lawsuits, the government has said it has not and does not “contend… that the deference afforded under Chevron… applies in this action.” This concession comes because the government knows its reading of a criminal statute is not entitled to any deference.

The D.C. District Court ruled in ATF’s favor out of “deference” to its governmental role, even though it would result in making half a million law-abiding citizens into criminals.

This brazen abdication of judicial independence shows just how unlawful much of modern administrative activity is. Article I, Section 1 of the Constitution vests “all” legislative power in Congress. No part of the Constitution allows a law enforcement agency to rewrite a law it disagrees with, nor does it allow a federal court to sit idly by while that same agency prosecutes citizens for violating the new, made-up law.

This decision proved too much even for the famously agency-friendly U.S. Court of Appeals for the District of Columbia Circuit, which ordered ATF not to enforce the ban against the litigants in that case pending a full appeal.

Several court challenges to the bump stock rule continue. Even if courts refuse to apply Chevron deference, lawmakers may still get away with passing the buck to the Executive Branch on this difficult issue.

Caleb Kruckenberg is Litigation Counsel at the New Civil Liberties Alliance, which has filed legal challenges to the Bump Stock Final Rule that are currently pending in the Tenth Circuit and the Western District of Texas. 

March 1, 2019 | Bump Stock Rule Puts Constitution In The Crosshairs

Speaker of the House Nancy Pelosi recently warned Republicans that if a GOP president can declare a national emergency over a wall on the southern border, the next Democrat president could declare one over gun violence. Her threat envisioned future gun control actions without Congress. But that’s already happening—and it has made a shambles of constitutional lawmaking.

The Department of Justice (DOJ) issued the Bump Stock Type Devices Final Rule late last year. This criminal regulation retroactively bans ownership of bump stocks, an accessory that helps shooters fire semi-automatic weapons more quickly by bumping the trigger with their finger when the gun recoils.

When the 90-day compliance window closes on March 26, lawful purchasers of some 520,000 bump stocks must have either surrendered their devices or destroyed them. Absent judicial relief, this regulation will convert all remaining owners of bump stocks into felons without action by Congress.

But the various lawsuits pending against the rule are not about guns or gun rights. Rather, these suits ask whether DOJ may create new criminal laws without involving Congress. The Constitution’s answer is a firm no. New criminal laws must clear the twin constitutional hurdles of “bicameralism” (passage by both houses of Congress) and “presentment” (Presidential signature or veto override).

Even a staunch gun control advocate like Senator Dianne Feinstein has recognized that Congress must be the one to act here: “Until March 2018, ATF maintained that bump stocks could not be banned through administrative action. Legislation is necessary to ensure a ban is implemented and regulations are not tied up in court.” Likewise, the Obama Administration faced tremendous pressure from allies to ban bump stocks via regulation but decided that it could not lawfully do so unilaterally. A pen and a phone would not suffice for this.

Nevertheless, current policymakers have defined two allegedly ambiguous terms in the 1934 National Firearms Act in order to ban bump stocks. Despite 80+ years of clarity and dozens of federal cases deeming the statute unambiguous, DOJ is trying to create a loophole in the definition of “machinegun” to fit bump stocks into it. Usually it’s criminal defendants who try such stunts to exempt their machineguns from the ban. This time it’s DOJ claiming ambiguity—and eroding respect for the rule of law.

Worse yet, in this week’s case out of the federal district court in D.C., the judge invoked the Chevron doctrine in deferring to DOJ’s definition of the terms “single function of the trigger” and “automatically.” DOJ’s new definitions are awkward at best, but Chevron poses the more nettlesome problem. This embarrassing precedent tells federal judges to defer to the executive branch’s statutory interpretation whenever the judge decides that a statute is ambiguous and the agency’s interpretation is reasonable. There is not room here for a complete takedown of Chevron, so suffice it to say that the D.C. plaintiffs did not enjoy due process of law when their judge deferred to the other party in the case rather than providing her independent judgment.

Besides which, the Chevron doctrine should not even come into play where a criminal statute is concerned. The Rule of Lenity dictates construing ambiguity in a criminal statute in favor of defendants. And make no mistake; there will be defendants. DOJ has conceded in court that it will use these same definitions to go after any bump stock owners who hold onto their devices.

Therein lies a future injustice. It is practically certain that some number of lawful purchasers will not get the word that bump stocks were banned. They will show up at a gun range to fire one, be seen there by an ATF agent or other law enforcement official and get arrested. The penalty is up to 10 years in prison and a permanent ban on gun ownership. These innocent owners will have no reason to have anticipated a ban—at least not a retroactive one. When Congress banned machineguns themselves in 1986, it did not do so retroactively.

This fact raises two further questions. First, how can a statute that did not ban anything retroactively later be construed to authorize banning bump stocks retroactively? It cannot, at least not when interpreted reasonably. Perhaps the greatest indignity to the Constitution in these cases is the idea that a statute that quite deliberately did not ban machineguns retroactively can be rewritten later by a federal agency to ban bump stocks retroactively. DOJ—and the D.C. district court—rely on the fiction that the statute is ambiguous when it is just silent.

Second, were Congress to ban bump stocks, would it do so retroactively and with the same penalty structure as owning an actual machinegun? History says no, especially since Congress has tried and failed to ban bump stocks several times—and those bills were rarely retroactive.

But DOJ’s loopholing requires it to use the same penalty structure because DOJ knows that courts will not let it get away with altering the length of sentences. DOJ often assures that prosecutorial discretion will prevent injustice. Somehow trust in that is hard to muster when the Department is already mangling the Constitution to rewrite the statute.

Congress is generally not willing to turn law-abiding citizens into felons, because Congress has to face voters. Administrative agencies like ATF and DOJ face no voters and show no such qualms. Bump stock owners risk prison as a result. Everyone else risks the terrifying consequences of allowing DOJ to write criminal laws without Congress. After all, if DOJ can create the bump stock rule, what stops it from bypassing Congress to create criminal laws on other subjects?

Barrels of ink have been spilled criticizing the administration’s national emergency declaration to transfer some funds for building a wall on the southern border. The bump stock ban sets a far worse precedent, yet comparatively little alarm has been raised. No matter one’s feelings about gun control policy, everyone should oppose rapid-fire destruction of constitutional lawmaking. Our liberty is in jeopardy.

You can follow Mark on Twitter @NCLAlegal and keep up with NCLA’s latest litigation activities protecting your civil liberties from violations by the administrative state at www.NCLA.legal.

This Opinion originally published in Forbes.com on March 1, 2019. Click to read full article.