Codrea v Barr

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Bumpstocks Didn’t Get Stay – What To Do Now

April 8, 2019 by 3 Comments

This past Friday the US Supreme Court denied the plaintiffs in Guedes et al v. BATFE and Codrea v. Barr a stay in the bump stock ban rule and referred the request back to the Circuit Court for the DC Circuit.

18A1019 GUEDES, DAMIEN, ET AL. V. BUREAU OF ALCOHOL, ET AL.


The application for stay, presented to The Chief Justice
and by him referred to the Court, is denied.


Applicants request that if we deny this application we
grant a limited stay of 120 hours to allow them to come into
compliance with the Final Rule. We refer the issue of such a
stay to the D.C. Circuit for its consideration.


Justice Thomas and Justice Gorsuch would grant the
application.

So where does this leave the case now?

The Firearms Policy Foundation released a statement by email along with the response of the Circuit Court on Sunday evening. If you do have a bump stock and are a member of one of the organizations such as Florida Carry or the Firearms Policy Foundation, you have until 5pm, Wednesday, April 10, 2019 to legally turn it in.

From FPF:

On Friday, the Supreme Court denied our legal team’s request
for a stay (i.e., postponement) of the ATF’s Final
Rule re-classifying “bump-stock-type” devices as illegal
machineguns while we continue to litigate the various claims we raised
in our lawsuit and in the other consolidated cases. The D.C. Circuit
subsequently ordered the following:

PER CURIAM ORDER [1781463] filed that,
based on the government’s representation that it will not enforce the
Bump-Stock Rule against the named plaintiffs or their bona fide
members before 5:00 p.m. on Wednesday, April 10, 2019, the emergency
joint motion to extend stay order [1781365-2] be denied and the
administrative stay entered on March 23, 2019, and clarified on March
25, 2019, be dissolved. The Clerk is directed to issue the mandate
forthwith. Before Judges: Henderson, Srinivasan and Millett. [19-5042,
19-5044]



The Government (DOJ/ATF) has agreed to allow the individual
plaintiffs in Guedes, et al. v. BATFE, et al. and the
organizational plaintiffs’ – i.e., Firearms Policy Foundation, Florida
Carry, Inc., and Madison Society Foundation, Inc. — bona fide members
(as well as the individuals in the consolidated Codrea, et
al. action) to come into compliance with the new Final Rule by
5p.m. on Wednesday, April 10, 2019. The Government also represented
that it “will also retain the bump stocks” that are provided to them
in compliance efforts until our legal action is completely
concluded.


Friday’s Supreme Court decision to deny the stay we requested was
disappointing but not entirely unexpected. But importantly, there is
much litigation left before the cases are disposed of. Our team is
currently working on a petition for en banc rehearing by the
full D.C. Circuit. And we are prepared, if need be, to petition the
U.S. Supreme Court for a writ of certiorari (review).


We maintain that the Government’s new rule is unconstitutional and
unlawful. And we will continue to aggressively litigate this case and
work to defend American gun owners from this unlawful ban mandated
by President Donald Trump. Updates will continue to be posted to our
BumpstockCase.com
case webpage.


In an abundance of caution, we wanted to make you aware of how the
Final Rule could affect owners of affected devices. As set forth in
the Final
Rule, 83 Fed.Reg. 66530, and according
to the ATF, a bump-stock-type device owner’s options are:


1) Destroy the bump-stock device according to the ATF’s published
“Bump
Stock Destruction Instructions”; or,


2) Surrender it/them to the “nearest” ATF office. (ATF advises that
it is best to make an appointment beforehand with the nearest ATF
office.) You can find your local ATF field office and their phone
number at https://www.atf.gov/contact/local-atf-offices.


Non-compliance with the ATF’s Final Rule (i.e., continued
possession of a bump-stock-type device) could lead to serious criminal
liability. Individuals (or a company/organization) who
maintain possession of an affected device can be prosecuted for
unlawful possession of a putative machinegun, where he/she/they can be
imprisoned for up to 10 years and fined up to $250,000 (or more in
some cases) per violation.


Chief Counsel Joshua Prince of Firearms Industry Consulting Group,
a division of Civil Rights Defense Firm, P.C., who is representing
Firearms Policy Foundation and numerous other plaintiffs in
Guedes, et al. v. BATFE, et al., has suggested that
individuals who wish to comply with the ATF’s Final Rule by
surrendering their device to the ATF do so under protest.


As you may be aware, both ATF’s
website relating to bump-stock devices and the Final
Rule, 83 Fed.Reg. 66530, declare that “current possessors also
have the option to abandon bump-stock-type devices at the nearest ATF
office.” In spite of that, however, some reports
(and our own experience) suggest that not all ATF local offices are
accepting bump-stock devices. Thus, you should call the local ATF
office before you travel there to confirm that they are, indeed,
accepting affected devices.


If they are accepting such devices, then make them aware that you
intend to visit their office to surrender your bump-stock device(s)
under protest and inquire as to whether they have any specific
procedures for your entry into the building.


Before you go, you will want to take pictures of your bump-stock
device(s), in case there is ever a question as to the condition, make,
and model of it/them. And you should also consider preparing a letter,
such as the Sample Letter provided below, to advise the ATF that you
are providing them your bump-stock device(s) under protest.


When you go, provide the ATF agent handling your matter with a copy
of the letter and demand that they provide you with a property receipt
that reflects their receipt of your bump-stock device(s) and specifies
the make and model of the device(s). Be aware that they may attempt to
have you sign an ATF 3400.1 Form – Consent to Forfeiture or
Destruction of Property and Waiver of Notice – which you
should NOT sign under ANY circumstance. In the event that
they ask you to sign an ATF 3400.1, inform them that the
only ATF form you are willing to sign is an
ATF 3400.23 – Receipt of Property and Other Items. If they argue at
all with you, politely tell them to review the internal memo that ATF
circulated regarding the right of individuals to surrender
bump-stock-type devices under protest and those individual’s right to
refuse to sign an ATF 3400.1 form.


It would also be prudent to separately document your experience of
the encounter in writing – such as the date and time of your visit,
the location of the ATF office you went to, the names or other
identifying information (ID #, etc.) of all ATF agents or persons you
spoke with, the details of all discussions, and any other information
they told or provided you – and keep it in a safe place.


You can also let our team know if the ATF in any way refuses or
rejects your attempt to comply with the Final Rule. You can submit a
report of your issue to hotline@fpchq.org and/or contact
your attorney for specific legal advice.


In the event that ATF elects to institute a forfeiture action
against your property, they are required to serve you with a copy. If
that happens, you should immediately contact an attorney, preferably
one who specializes in federal firearms law, if you wish to challenge
ATF’s ability to forfeit your property. Again, you can submit a report
of your issue to hotline@fpchq.org, but always
contact your attorney for specific legal advice.


Again, we will continue to aggressively litigate this case and work
to defend American gun owners from this unlawful and unconstitutional
ban.


If you are able, please help support this important lawsuit and our
fight for your rights by making a tax-deductible donation at FightATF.com.

NOTE: This message and its contents are intended to provide
general information only. It is not intended to provide legal advice.
You should always contact your attorney if you want or need specific
legal advice. 

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DC Circuit’s April Fools Joke On The Constitution

April 1, 2019 by 3 Comments

The US Court of Appeals for the District of Columbia released its decision in the combined cases of Guedes et al v. BATFE et al and Codrea et al v. Barr. It was a per curiam decision with Judge Karen Henderson dissenting in part and concurring in part. The court sided with the District Court in denying the preliminary injunction of the bump stock rule.

PER
CURIAM
: In October 2017, a lone gunman armed with
bump-stock-enhanced semiautomatic weapons murdered 58
people and wounded hundreds more in a mass shooting at a
concert in Las Vegas, Nevada. In the wake of that tragedy, the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“Bureau”) promulgated through formal notice-and-comment
proceedings a rule that classifies bump-stock devices as
machine guns under the National Firearms Act, 26 U.S.C.
§§ 5801–5872.
See
Bump-Stock-Type Devices, 83 Fed. Reg.
66,514 (Dec. 26, 2018) (“Bump-Stock Rule”). The then-
Acting Attorney General Matthew Whitaker initially signed the
final Bump-Stock Rule, and Attorney General William Barr
independently ratified it shortly after taking office. Bump-
stock owners and advocates filed separate lawsuits in the
United States District Court for the District of Columbia to
prevent the Rule from taking effect. The district court denied
the plaintiffs’ motions for a preliminary injunction to halt the
Rule’s effective date.
Guedes v. Bureau of Alcohol, Tobacco,
Firearms, and Explosives
, 356 F. Supp. 3d 109 (D.D.C. 2019).
We affirm the denial of preliminary injunctive relief.

 The case was heard by Judges Karen Henderson, Sri Srinivasan, and Patricia Millett. Srinivasan and Millett were appointed to the Court of Appeals by former President Obama while Judge Henderson by President George H. W. Bush.

In reaching their decision, the court found that BATFE was entitled to Chevron deference and that the plaintiffs were unlikely to succeed in their case as a result.

Judge Henderson parted company with her colleagues and said that the bump stock rule does contradict the statutory definition of a machine gun. As such, she would have granted the injunction.
She examined the history of the National Firearms Act, rulings of BATFE, the previous rulings that the bump stock was NOT a machine gun, the slow motion video evidence submitted to the District Court, and the affidavit of Richard Vasquez who had done the technical evaluation of the bump stock.

She concluded:

If the focus is
—as it must
be—on the trigger,
a bump stock
does not qualify as a “machinegun.” A semiautomatic rifle
shoots a single round
per pull of the trigger and the bump stock
changes
only
how
the pull is accomplished. Without a bump
stock
, the shooter
pull
s the trigger with his finger for each shot.
With a bump stock, however, the shooter
—after the initial
pull
—maintains backward pressure on the trigger and puts forward pressure on the barrel with his non-
shooting hand;
these manual inputs cause the rifle to slide and result in the
shooter’s
stationary
finger pulling the trigger.
Bump
-Stock
–
Type Devices
, 83 Fed. Reg.
at 66,533 (“The constant forward
pressure with the non-
trigger hand pushes the firearm forward,
again pulling the firearm forward, engaging the trigger, and
firing a second round.”). T
he bump stock therefore
affects
whether the shooter
pull
s
his
trigger
finger or keep
s it
stationary
. It does not change the movement of the trigger
itself
, which “
must be released, reset, and fully pulled rearward
before
[a]
subsequent round can be fired.” Verified
Declaration of Richard (Rick) Vasquez, former Acting Chief
of the Firearms Tech
. Branch of ATF, at 3–4.


Like countless other Americans, I can think of
little
legitimate
use
for
a bump stock. That thought
, however
, has
nothing to do with the legality
of the Bump Stock Rule. For
the reason
s detailed
supra
, I believe the Bump Stock Rule
expands the statutory definition of “machinegun” and is
therefore
ultra vires
. In my view, the plaintiffs are likely to
succeed on
the merits of their challenge and I would grant them
preliminary injunctive relief.


Accordingly, I respectfully dissent

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DC Circuit Stays Bump Stock Rule (Updated)

March 25, 2019 by 4 Comments

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.

From the court’s order:

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.

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Bumpstock Case Appealed To DC Court Of Appeals

March 5, 2019 by

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.

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District Court Denies TRO In Bump Stock Cases

February 26, 2019 by 3 Comments

Judge Dabney Friedrich of the US District Court for the District of Columbia turned down a motion for a temporary restraining order to prevent the Trump Administration’s bump stock ban from going into effect. This ruling impacts a few of the bump stock ban challenges including Guedes, FPC v. Whitaker, and Codrea v. Barr.

In his ruling Judge Friedrich said that the BATFE was entitled to Chevron deference allowing it to redefine the actual meaning of words.

Most of the plaintiffs’ administrative law challenges are foreclosed by the Chevron doctrine, which permits an agency to reasonably define undefined statutory terms. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Here, Congress defined “machinegun” in the NFA to include devices that permit a firearm to shoot “automatically more than one shot, without manual reloading, by a single function of the trigger,” 26 U.S.C. § 5845(b), but it did not further define the terms “single function of the trigger” or “automatically.” Because both terms are ambiguous, ATF was permitted to reasonably interpret them, and in light of their ordinary
meaning, it was reasonable for ATF to interpret “single function of the trigger” to mean “single pull of the trigger and analogous motions” and “automatically” to mean “as the result of a self- acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger.” ATF also reasonably applied these definitions when it concluded that bump stocks permit a shooter to discharge multiple rounds automatically with a single function of the trigger. That this decision marked a reversal of ATF’s previous interpretation is not a basis for invalidating the rule because ATF’s current interpretation is lawful and ATF adequately explained the change in interpretation.

The plaintiffs have already said that they plan to appeal this to the DC Court of Appeals.

You can read the reaction of the plaintiffs in this joint statement by the Firearms Policy Coalition and the Firearms Policy Foundation.