by The Court of Appeals for the DC Circuit has issued a stay on the enforcement of the BATFE’s bump stock ban. It is only temporary and is intended to give the judges on the Circuit Court the time needed to study the expedited appeal. It doesn’t go to the merits of the case but the judges acknowledged that the March 26th deadline was an issue.
BEFORE: Henderson, Millett, and Srinivasan, Circuit Judges
O R D E R
Plaintiffs in these three consolidated cases challenge a final agency rule banning
Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018) (“Bump-Stock Rule”),
which is scheduled to take effect on March 26, 2019. On February 25, 2019, the district
court denied the plaintiffs’ joint request for a preliminary injunction staying the Bump-Stock
Rule’s effective date. On March 1, 2019, this court granted the Appellants’ joint motion for
expedition of this case, in which they sought resolution of the appeal on a highly expedited
basis before the March 26, 2019, effective date. Under that expedited schedule, this case
was argued on March 22, 2019. At oral argument, counsel for the government explained
that it was now its position that the Bump Stock Rule’s March 26, 2019 effective date
should be viewed as the date when the government will cease exercising its prosecutorial
discretion not to enforce federal law against those who possess or trade in bump-stockdevices covered by the Bump-Stock Rule. Oral Arg. 49:00-51:55. Following oral argument, the Firearms Policy Coalition, Inc. filed a voluntary motion to dismiss its appeal, or in the
alternative to stay its appeal, and advised that the government opposes the motion to
dismiss. In light of these representations, it is
ORDERED that the motion of the Firearms Policy Coalition, Inc., to dismiss its
appeal, No. 19-5043, be granted. Appeal No. 19-5043 is hereby dismissed. It is
FURTHER ORDERED, on the court’s own motion, that the effective date of the
Bump-Stock Rule, 83 Fed. Reg. 66514 (Dec. 26, 2018), be administratively stayed in its
application only as to the named Appellants in appeals Nos. 19-5042 and 19-5044, pending
further order of this Court. The purpose of this stay is exclusively to give the Court
sufficient opportunity to consider the disposition of this highly expedited appeal, and should
not be construed in any way as a ruling on the merits of the appeal. See D.C. Circuit
Handbook of Practice and Internal Procedures 33 (2018).
As I understand this, it only applies to the individuals and organizations named as plaintiffs in the cases.
UPDATE: The attorneys for the appellants have filed an Emergency Joint Motion to Modify the Stay Order. Since the government refuses to compromise, they are requesting either clarification from the Court saying the stay ” includes their respective members, supporters, and those similarly situated
members of the public” or to stay the Final Rule in its entirety until the DC Circuit has made a decision on the merits. They request either alternative be extended to 48 hours after the Court makes its final determination in order to appeal to the Supreme Court.
The motion can be found here.
UPDATE II: Please see the comment from Brandon Combs of the FPC/FPF below. FPC v. Whitaker was dismissed only insofar as its appeal goes. As Brandon notes, they plan to amend their filing in District Court now that AG William Barr has “ratified” the earlier decision.
UPDATE III: The DC Circuit Court has clarified their stay of the bump stock rule but will not extend the stay to all bump stocks. As a result, the plaintiffs in this case have filed an application for an emergency stay with Chief Justice John Roberts.
From the clarification, in part:
FURTHER ORDERED that the request for clarification be granted in part and be
denied in part. The administrative stay entered on March 23, 2019, applies only to the
named Appellants in appeals Nos. 19-5042 and 19-5044, including any current bona
fide members of the named membership associations.
Thus, if you are a member of the Madison Society Foundation, Florida Carry, or the Firearms Policy Foundation, the stay applies to you and you will not have to turn your bump stock in tomorrow or destroy it by then.
Here is what FPF says about membership:
This morning the U.S. DOJ filed brief arguing that Members of Firearms Policy Foundation who own/possess bump-stock-type devices are currently protected by the D.C. Circuit’s administrative stay of the ATF’s bumpstock ban Final Rule. To become a member and Join FPF please donate $1 or more at FightATF.com or JoinFPF.org.
If you want to join the Madison Society Foundation, it is $30 for a lifetime family membership. Go here if you’d like to join them.
Finally, the membership page for Florida Carry can be found here.
I don’t have a bump stock but I did join the FPF because I appreciate the work they are doing.
Firearms Policy Coalition (FPC) a plaintiff, is a 501(c)4 non-profit organization. As such they represent, and are largely supported by, those persons or entities which donate to FPC. It would be interesting to find if the stay also applies to any individual who is a general member of that organization. 'Class Representation')
The only problem is that the Firearms Policy Coalition asked that their lawsuit be dismissed and it was. It is the Firearms Policy Foundation, the 501(c)3 non-profit that the stay applies to as they were part of the Guedes case.
Unknown: That is essentially what the Guedes, et al. Appellants asked for in the Emergency Motion today. See http://bit.ly/2YhkIie
John: The FPC lawsuit was not dismissed. FPC dismissed only its interlocutory appeal following oral arguments. FPC plans to "move to amend its Complaint to respond to the ratification in ways that are relevant to the Court’s eventual application of the voluntary cessation doctrine." Then FPC can "secure a final judgment in the district court, and to then appeal from that judgment." The FPF/Guedes claims will proceed [separately for now] on their current litigation track on up to the Supreme Court and/or back down to the trial court.
Thanks for clarifying that!