Rainier Arms LLC v BATFE Archives -

Join SAF If You Want Pistol Brace Protection

Less than a half hour ago, I received an email from the Second Amendment Foundation which I found to be brilliant. It arrived while I was still writing my last post. It observed that given Judge Boyle’s denial of intervenor status for the NRA and its members, NRA members can join SAF and get protected by the preliminary injunction like the rest of SAF’s members.

BELLEVUE, WA – The federal judge presiding over a Second Amendment Foundation challenge to the Biden administration’s new arm brace rule has denied a request by the National Rifle Association to intervene in an effort to get the same protections for its members as SAF members have been granted.

However, the order denying NRA’s intervention does not mean NRA members are out of luck, said SAF founder and Executive Vice President Alan M. Gottlieb. They can join SAF and be covered under the judge’s ruling issued last month. The case is known as SAF, et.al. v. ATF, et. al.

“While we’re certain NRA members are disappointed,” Gottlieb said, “by joining SAF they can get the protection of the judge’s ruling.”

SAF offers several different tiers of memberships, available at https://www.saf.org/join-saf/. Annual membership is $15, a five-year membership is $50 and a life membership is $150. Membership is effective upon date of receipt. For questions regarding membership, please contact info@saf.org.

In her ruling, U.S. District Judge Jane J. Boyle wrote, “For intervention as of right, the NRA’s motion fails on two independent grounds. First, the Court finds the NRA’s application for intervention is not timely. Second, the Court finds the NRA’s interests are adequately represented by the current Plaintiffs…In sum, the NRA knew of the Rule more than a year before it moved to intervene, and the NRA had no basis to assume a nationwide injunction would be issued in this case. Moreover, allowing an intervention under these circumstances risks incentivizing opportunistic “injunction shopping” under the auspices of “timely” interventions to protect a threatened interest. The NRA’s Motion is not timely.”

SAF is joined in the case by Rainier Arms, LLC and two private citizens, Samuel Walley and William Green. They are represented by attorney Chad Flores at Flores Law in Houston, Texas.

“We will definitely welcome any NRA members wanting to join SAF,” said Executive Director Adam Kraut.

NRA’s Attempt To Intervene Denied

The NRA sought to intervene in the Second Amendment Foundation’s case entitled Second Amendment Foundation et al v. BATFE. (corrected case title) This is a case challenging the Biden pistol-brace ban. As with Mock v. Garland, the plaintiffs including all members of the Second Amendment Foundation were covered by the injunction against the enforcement of the pistol-brace ban while the 5th Circuit Court of Appeals is taking up the issue. When the NRA sought to intervene, the Second Amendment Foundation did not oppose this motion but it was opposed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

At this point, I think it is important to note that the brief and motion of the NRA seeking intervenor status in this case was signed by William Brewer III as the attorney of record. At the time the NRA filed to intervene, I found it more than surprising as Brewer has little to no expertise in Second Amendment law.

Today in a 12 page Memorandum Opinion and Order, US District Court Judge Jane Boyle denied the NRA’s motion for intervenor status. The net result is that NRA members are not covered by the injunction against enforcement of the pistol-brace ban.

The Federal Rules of Civil Procedure allow intervention by another party in two ways. One is by right and the second is by permission of the judge if he or she finds it warranted.

An intervention by right must be timely. That is a threshold requirement which must be met. Judge Boyle found the NRA’s motion was not timely. After reviewing some of the history of this case which began long before the pistol-brace ban was even finalized, she concluded:

On those facts alone, it is hard to conclude that the NRA’s Motion to Intervene is timely. But the unusual circumstances of this case further militate against such a finding. Specifically, despite knowing of the Rule and Plaintiffs’ limited injunction request, the NRA only sought to intervene once this Court granted Plaintiffs’ motion for preliminary injunction pending the Fifth Circuit appeal in Mock. To find intervention timely under these circumstances would seemingly incentivize “injunction shopping” among putative intervenors seeking to challenge agency actions.

Judge Boyle goes on to add that the NRA knew of the BATFE’s proposed rule for more than a year before it moved to intervene. She then goes on to say that the interests of the NRA members will be adequately represented by the plaintiffs in this case.

In terms of the case for a permissive intervention, Judge Boyle found the same considerations that prevented intervention by right also applied here. Namely that the NRA’s interests are adequately represented by the existing plaintiffs. She notes that any ruling to the contrary would create a “perverse” precedent for potential intervenors to go case shopping for cases where a preliminary injunction had already been granted. Accordingly, she denied the NRA’s motion to intervene on both by right and by permission.

Given this ruling, the NRA will need to hope for success in their case in North Dakota which they are backing. That case, Firearms Regulatory Accountability Coalition v. Garland, does not seem to have any injunctions issued as of now.

Chalk up this denial as another loss in court by Bill Brewer while representing the NRA and taking as much of the member’s money as possible.