Michael Cargill v ATF

CASE SUMMARY

May a federal agency rewrite a federal statute? May that rewrite turn otherwise innocent Americans into criminals overnight?

Under our Constitution, the answers to those questions should be an obvious no. Congress—and Congress, alone—has the power to make law. The executive branch, which includes federal agencies and departments, possesses only the power to enforce it. But if the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) gets its way, it will possess the power to make law and enforce it.

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CASE STATUS:
Case has been set for an
initial pretrial conference

CASE START DATE:
3/25/19

ORIGINAL COURT:
U.S. District Court for the Western District of Texas

JUDICIAL COURT IN WHICH NCLA BROUGHT SUIT:
U.S. District Court for the Western District of Texas

A federal statute outlaws machine guns but it does not outlaw bump stock devices that attach to a rifle and allow it to fire many shots in succession. For years, the ATF correctly concluded that bump stocks are not illegal machine guns under federal law.

All that changed in 2019, when the ATF switched course and decided that bump stocks are now “machine guns” banned under federal law. That switch threatened to turn more than 500,000 people into criminals overnight and may face a 10-year prison sentence for owning something the government had told them before was legal to possess when they bought it.

Michael Cargill is one of those people. A gun shop owner, Army veteran and firearms instructor in Austin, Texas, Cargill bought two bump stocks in April 2018. Like hundreds of thousands of other Americans, Mr. Cargill bought his bump stocks in reliance on the ATF’s conclusion that the devices were entirely legal to own and use. In fact, a letter attached to the device said so.

NCLA represents Mr. Cargill in a constitutional lawsuit that challenges the ATF’s effort to rewrite a federal statute. The principle NCLA and Mr. Cargill seek to vindicate is simple: If bump stocks are to be banned, Congress must make that decision and Congress must exercise the authority to ban them. If an agency such as the ATF can rewrite a statute as it pleases, then any agency can rewrite any statute as it pleases. Whatever one thinks of bump stocks, our laws must comply with the Constitution, or neither the Constitution nor the rule of law has any meaning.

CASE DOCUMENTS

October 1, 2020 | Plaintiff’s Closing Argument in the United States District Court for the Western District of Texas
April 3, 2020 | Plaintiff’s Proposed Findings of Fact and Conclusions of Law
August 14, 2019 | Order Setting Initial Pretrial Conference

IT IS HEREBY ORDERED that the above entitled and numbered case has been set for an
INITIAL PRETRIAL CONFERENCE…

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March 25, 2019 | Complaint

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,andart. II, §3 (emphasis added). It is therefore a basic tenetof our government that the Executive Branch may not, on its own, rewrite the lawas itsees fit. Case 1:19-cv-00349 Document 1 Filed 03/25/19 Page 1 of 38

2The Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives haveviolated this basic principleby 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 tomake hundreds of thousands ofotherwiselaw-abiding Americans into felons in defiance of constitutional restraints on executive power. Whatever the merits of such a policy, the Final Rule violates the fundamental constitutional order and thus cannot be tolerated.

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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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January 8, 2020 | WATCH: NCLA Video Calls Out ATF for Rewriting Statute and Turning Law-Abiding Citizens into Criminals Overnight

Washington, DC (January 8, 2020) – Congress—and only Congress—has the power to write new laws, but a video released today by the New Civil Liberties Alliance features the case of Austin, Texas resident Michael Cargill, who believes the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) did not act lawfully when it rewrote a statute banning bump stocks. Cargill says the ATF (along with the U.S. Department of Justice) failed to follow the law when they issued a regulation criminalizing the possession of bump stocks effective March 26, 2019. Cargill surrendered two bump stocks to his local Austin ATF Field Office in accordance with the Final Rule, but he is challenging the ban in federal court with NCLA’s help.

Video Excerpts:

Michael Cargill, NCLA client: “The bump stock ban turned innocent law-abiding citizens into criminals overnight even though they were compliant with the statute. And you know that’s not right.”

Caleb Kruckenberg, Litigation Counsel, NCLA: “The goal of our case here is to tell ATF that they can’t get away with this kind of administrative law-making. This isn’t constitutionally permissible, and it goes against everything that our nation was founded on.”

Mark Chenoweth, Executive Director & General Counsel, NCLA: “This case is not about where you stand on bump stocks. It’s about the rule of law. It’s about whether an agency can rewrite a statute and turn a law-abiding citizen into a criminal. If ATF can ban bumps stocks in this way, any agency can ban anything.”

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.

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March 26, 2019 | NCLA Files Lawsuit in Texas Against the ATF’s Bump Stock Final Rule

Washington, D.C. — The New Civil Liberties Alliance (NCLA) filed a lawsuit in the U.S. District Court for the Western District of Texas, Austin Division, against the  Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The case seeks to overturn the federal ban on bump stocks and to halt its enforcement. NCLA contends that only Congress, not an administrative agency like the ATF, can write criminal laws such as the ban on
bump stocks.

NCLA represents Austin, Texas resident and gun enthusiast Michael Cargill. Mr. Cargill surrendered two bump stocks this afternoon at the Austin ATF Field Office in accordance with the ban. Whether bump stocks should be outlawed is a question that Congress must address. Only Congress— and not an administrative agency—has the power to ban these devices. NCLA believes the ATF did not act lawfully in issuing the ban.

On March 21, 2019, the U.S. Court of Appeals for the Tenth Circuit issued a temporary stay of the bump stock ban that applies to another NCLA 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.

“Administrative agencies may not rewrite a law that Congress passed. Yet that is what the ATF and DOJ have done with the bump stock rule. The ban perverts the rule of law and upends our constitutional system.”—Steve Simpson, NCLA Senior Litigation Counsel

“Two different federal Courts of Appeals have ordered the ATF to halt its bump stock rule against legal challengers. Today, rather than abide by an order the ATF had no right to issue, Mr. Cargill will be joining those efforts to resist this unlawful rule.” –Caleb Kruckenberg, NCLA Litigation 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 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.

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