As I reported a week ago, Judge Dabney Friedrich of the US District Court for the District of Columbia denied the motions for a temporary restraining order in the multiple bumpstock ban cases. The plaintiffs including the Firearms Policy Foundation and the Firearms Policy Coalition indicated they would appeal and they did. On Friday they requested an expedited hearing and briefing before the US Court of Appeals for the District of Columbia and it was granted.
More on the case from this joint press release from FPF and FPC:
WASHINGTON, D.C. (March 4, 2019) — Today, attorneys for Firearms Policy Coalition and Firearms Policy Foundation filed opening briefs in their consolidated appeals with the Court of Appeals for the D.C. Circuit in the ongoing federal litigation challenging the confiscatory “bump-stock” ban rulemaking by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Copies of the briefs and related filings are available at BumpStockCase.com.
On February 25, United States District Judge Dabney L. Friedrich denied motions for preliminary injunction in the matters. The ruling came little over one year after President Trump directed the Department of Justice, at the time headed by Attorney General Jeff Sessions, to “as expeditiously as possible” propose “a rule banning all” bump-stock type devices. The challenged Final Rule was signed by Acting Attorney General Matthew Whitaker and published December 18, 2018.
Counsel for FPC and FPF filed notices of appeal on February 25, and on February 26, they requested an expedited appeal schedule from the Court of Appeals for the D.C. Circuit. Last Friday, March 1, a three-judge panel of the D.C. Circuit granted FPC’s and FPF’s joint motion to expedite the briefing and arguments, setting today as the deadline to file the opening briefs. The government’s answering brief will be due on March 13, and the appellants’ reply brief will be due on March 15. Oral arguments will be heard by the Court of Appeals on March 22 at 9:30 a.m.
In its brief, FPC argues that the Rule is invalid because it was issued by then-Acting Attorney General Matthew Whitaker. FPC explains that the designation of Mr. Whitaker – who was neither in the Department of Justice chain of command nor confirmed by the Senate – to serve in that role was both illegal and unconstitutional.
In the Guedes appeal, FPF argues that the text of the federal statutes at issue in the Final Rule are clear and unambiguous, that the rule of lenity precludes the ATF’s proposed new definition of ‘machinegun’, and that the rule is unreasonable, arbitrary, and capricious. The brief also argues that the “district court abused its discretion in finding the statutory language ambiguous and erred as a matter of law in according ATF Chevron deference regarding the terms ‘single function of the trigger’ and ‘automatically’.”
Thomas C. Goldstein, Daniel Woofter, Charles H. Davis, and Erica Oleszczuk Evans of Goldstein & Russell, P.C., are on the brief for the FPC appeal. Attorneys Joshua Prince and Adam Kraut of Civil Rights Defense Firm, P.C., and Erik Jaffe of Schaerr Jaffe LLP are on the brief for the FPF appeal.
Unless the appeals result in a temporary injunction or stay of enforcement, the ATF’s Final Rule will take effect on March 26, when the federal government will consider the affected devices to be illegal “machinguns” and carry severe criminal penalties including large fines and up to ten years in federal prison.
FPC and FPF remain committed to protecting Americans who own and possess bump-stock devices from the ATF’s unlawful Final Rule.
The case of David Codrea et al v. Barr will also be heard at the same time as the Guedes and Firearms Policy Coalition cases.
Stephen Stamboulieh, who is the attorney for Codrea et al, has this to say about the appeal:
This appeal is about an agency action in which a regulation was promulgated which seeks to dispossess hundreds of thousands of Americans from their private property. The ATF expressly acknowledges that “[b]etween 2008 and 2017, however, ATF also issued classification decisions concluding that other bump-stock-type devices were not machineguns . . . .” 83 Fed.Reg. 66514, 2018 WL 6738526 (Dec. 26, 2018). It is also undisputed that ordinary law-abiding individuals have spent, during that time period, millions of dollars of the purchase of such items in full reliance on repeated decisions of the ATF. Id. at 66543 (“This final rule is expected to have an impact of over $100 million in the first year of this regulatory action.”).
Yet, under the ATF’s new rule at issue here, if those Americans don’t surrender or destroy their heretofore legal private property, they will be prosecuted as felons. However, due to political pressure from an incident in Las Vegas at the Mandalay Bay and an instruction from President Trump to ban bump stocks, the ATF has taken an unambiguous congressional statute and has redefined plain text into something congress did not intend when it passed the National Firearms Act (“NFA”), just at ATF itself acknowledged during this time period. Worse, the district court sustained this agency action by applying the Chevron doctrine in direct contravention of controlling Supreme Court precedent that make plain that the Chevron doctrine has no place in the construction of criminal statutes.
Justice requires an injunction issue in this case. It requires such because the ATF has no authority to rewrite a congressional statute to fit the current agenda. Congress has expressly denied the ATF the authority to issue regulations with retroactive effect. “Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law.” Wis. Cent., Ltd. v. United States, 138 S.Ct. 2067, 2074 (2018). This is not merely a suggestion to the agencies, but a mandate from our highest court. While individuals may or may not like bump stocks, that “new social problem[ or] preference” is properly left to Congress to declare such and not an unelected agency which has stated over and over in the past that is has no authority to regulate bump stocks.