Aposhian v. Barr

Decision Date07 May 2020
Docket NumberNo. 19-4036,19-4036
Parties W. Clark APOSHIAN, Plaintiff - Appellant, v. William BARR, Attorney General of the United States; United States Department of Justice; Thomas E. Brandon, Acting Director Bureau of Alcohol Tobacco Firearms and Explosives; Bureau of Alcohol Tobacco Firearms and Explosives, Defendants - Appellees. Cato Institute and Firearms Policy Coalition ; Due Process Institute, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Caleb Kruckenberg, Litigation Counsel (Steve Simpson and Harriet Hageman, Senior Litigation Counsel; and Mark Chenoweth, General Counsel, with him on the briefs), New Civil Liberties Alliance, Washington, DC, appearing for Appellant.

Brad Hinshelwood, Attorney, Civil Division, United States Department of Justice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC; John W. Huber, United States Attorney, Office of the United States Attorney for the District of Utah, Salt Lake City, Utah; Mark B. Stern, Michael S. Raab, and Abby C. Wright, Attorneys, Civil Division, United States Department of Justice, Washington, DC, with him on the briefs), appearing for Appellees.

Ilya Shapiro, Washington, DC, for Amicus Curiae Cato Institute.

John D. Cline, San Francisco, California, for Amicus Curiae Due Process Institute.

Before BRISCOE, MORITZ, and CARSON, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant W. Clark Aposhian has filed an interlocutory appeal from the district court's denial of his motion for a preliminary injunction. The district court concluded that Mr. Aposhian had not shown a likelihood of success on the merits of his challenge to a rule promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that classifies bump stocks as machine guns under the National Firearms Act (NFA), 26 U.S.C. §§ 5801 – 5872. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (Final Rule). The Final Rule was promulgated to clarify the definition of "machinegun" as found in 26 U.S.C. § 5845(b).1 It is that definition of machine gun and the Final Rule that are the focus of this appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we agree with the outcome reached by the district court that Mr. Aposhian has failed to establish a likelihood of success on the merits of his challenge to the Final Rule, and we affirm the denial of preliminary injunctive relief.

IStatutory Framework

The NFA (i) regulates the production, dealing in, possession, transfer, import, and export of covered firearms; (ii) creates a national firearms registry; and (iii) imposes taxes on firearms importers, manufacturers, and dealers, as well as specified transfers of covered firearms. 26 U.S.C. §§ 5801 – 5861. Failure to comply with the NFA's requirements results in penalties and forfeiture and subjects the violator to the general enforcement measures available under the internal revenue laws. Id. §§ 5871–5872.

"Machinegun[s]" are subject to regulation and registration under the NFA. Id. § 5845(a). The NFA defines a "machinegun" as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." Id. § 5845(b). The definition also includes "the frame or receiver of any such weapon," as well as "any part" or "combination of parts designed and intended, for use in converting a weapon into a machinegun," and "any combination of parts from which a machinegun can be assembled" as long as those "parts are in the possession or under the control of a person." Id.

Congress expressly charged the Attorney General with the "administration and enforcement" of the NFA, id. § 7801(a)(1), (a)(2)(A), and provided that the Attorney General "shall prescribe all needful rules and regulations for the enforcement of" the NFA, id. § 7805; see id. § 7801(a)(2)(A).

The Gun Control Act of 1968 (GCA), 18 U.S.C. § 921 et seq., as amended by the Firearm Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986), imposes both criminal prohibitions and a regulatory licensing scheme on certain firearm transactions. See 18 U.S.C. § 922 (criminal prohibitions); id. § 923 (licensing scheme). The GCA incorporates by reference the definition of machine gun in the NFA. See id. § 921(a)(23). The GCA also expressly delegates administrative and rulemaking authority to the Attorney General to "prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter." Id. § 926(a). The Attorney General has delegated the responsibility for enforcing and administering the NFA and the GCA to ATF. See 28 C.F.R. § 0.130(a).

Under 18 U.S.C. § 922(o), it is "unlawful for any person to transfer or possess a machinegun." Conversely, many firearms requiring a distinct pull of the trigger to shoot each bullet are lawful. See generally id. § 922 ; 26 U.S.C. § 5845. Over time, ATF has promulgated regulations and issued rulings defining various terms in the NFA and GCA and classifying weapons and parts as machine guns.

Regulation of Bump Stocks

A "bump stock" is a device that replaces the standard stationary stock of a semiautomatic rifle—the part of the rifle that generally rests against the shooter's shoulder—with a sliding, non-stationary stock that permits the shooter to rapidly increase the rate of fire, approximating that of an automatic weapon. Final Rule at 66,516. A bump stock does so by channeling the recoil energy from each shot "into the space created by the sliding stock (approximately 1.5 inches) in constrained linear rearward and forward paths." Id. at 66,518. The bump stock "harnesses the firearm's recoil energy as part of a continuous back-and-forth cycle that allows the shooter to attain continuous firing" following a single pull of the trigger, producing a rapid bumping of the trigger against the shooter's stationary finger. Id. at 66,533. That design allows the shooter, by maintaining constant rearward pressure on the device's extension ledge2 with the trigger finger as well as forward pressure on the front of the gun, to fire bullets continuously and at a high rate of fire to "mimic automatic fire." Id. at 66,516. This continuous cycle of fire-recoil-bump-fire lasts until the shooter releases the trigger by removing his finger from the extension ledge, the weapon malfunctions, or the ammunition is exhausted. Id. at 66,519.

The Attorney General, exercising his regulatory authority, first included a bump stock device—the Akins Accelerator—within the statutory definition of "machinegun" in 2006. See ATF Ruling 2006-2; see also Akins v. United States , 312 F. App'x 197, 199 (11th Cir. 2009). The Akins Accelerator, unlike many bump stocks, used "an internal spring" to "reposition and refire" the firearm. Akins , 312 F. App'x at 198. ATF later limited the devices it defined as machine guns by concluding that bump stocks that operated without an internal spring were not machine guns. Final Rule at 66,514.

On October 1, 2017, a shooter in Las Vegas, Nevada, used multiple semiautomatic rifles equipped with bump stocks to fire several hundred rounds of ammunition into a crowd of concert attendees within a short period of time. Id. at 66,516.3 The " ‘rapid fire’ operation" of the shooter's weapons enabled by the bump stocks left 58 dead and approximately 500 wounded

. Id. In response, President Trump directed the Department of Justice "to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns." Application of the Definition of Machinegun to "Bump Fire" Stocks and Other Similar Devices, 83 Fed. Reg. 7,949, 7,949 (Feb. 20, 2018). ATF then revisited the status of bump stocks, reviewed its earlier determinations for bump-stock-type devices issued between 2008 and 2017, and decided to clarify by the rulemaking process the statutory terms "automatically" and "single function of the trigger" as applied in defining what is or is not a machine gun. Final Rule at 66,514–66,515. On March 29, 2018, then-Attorney General Sessions issued a Notice of Proposed Rulemaking that suggested "amend[ing] the [ATF] regulations to clarify that [bump stocks] are ‘machineguns’ " under 26 U.S.C. § 5845(b). See Bump-Stock-Type Devices, 83 Fed. Reg. 13,442 (March 29, 2018).

ATF promulgated its Final Rule on December 26, 2018. Regarding the statutory definition of machine gun, the Final Rule provided that the NFA's use of "the term ‘automatically’ as it modifies ‘shoots, is designed to shoot, or can be readily restored to shoot,’ " 26 U.S.C. § 5845(b), "means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger." Final Rule at 66,553–66,554 (codified at 27 C.F.R. §§ 447.11, 478.11, 479.11 ). The Final Rule further defined "single function of the trigger," 26 U.S.C. § 5845(b), to mean "a single pull of the trigger and analogous motions." Final Rule at 66,553–66,554 (codified at 27 C.F.R. §§ 447.11, 478.11, 479.11 ).

Given those definitions, the Final Rule concluded that the statutory term " ‘machinegun’ includes a bump-stock-type device"—that is, "a device that allows a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter." Id. (codified at 27 C.F.R. §§ 447.11, 478.11, 479.11 ).

For its authority to promulgate the Final Rule, ATF relied on both the "plain meaning" of the NFA and the Attorney General's delegation to the agency to administer and enforce the NFA and GCA. Id. at 66,527. In addition, ATF stated that if 26 U.S.C. § 5845(b) is ambiguous, the Final Rule "rests on a reasonable construction." Id. (citing and invoking Chevron U.S.A.,...

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