Aposhian v. Wilkinson
| Decision Date | 05 March 2021 |
| Docket Number | No. 19-4036,19-4036 |
| Citation | 989 F.3d 890 (Mem) |
| Parties | W. Clark APOSHIAN, Plaintiff - Appellant, v. Robert M. WILKINSON, Acting Attorney General of the United States; United States Department of Justice; Regina Lombardo, 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. |
| Court | U.S. Court of Appeals — Tenth Circuit |
On September 4, 2020, this court entered an order granting Appellant's Petition for Rehearing En Banc. Having now considered the parties’ supplemental briefs and heard oral argument in this matter, a majority of the en banc panel has voted to vacate the September 4, 2020 order as improvidently granted. As a result, the court's September 4, 2020 order granting en banc rehearing is VACATED, the court's May 7, 2020 opinion is REINSTATED, and the Clerk shall reissue this court's judgment as of the date of this order.
Chief Judge Tymkovich, as well as Judges Hartz, Holmes, Eid and Carson would proceed with en banc rehearing. Chief Judge Tymkovich, Judge Hartz, Judge Eid, and Judge Carson have written separate dissents from this order, and each has joined in the others’ dissents. Judge Holmes has also joined all dissents.
All pending motions for leave to file amicus briefs on rehearing are DENIED.
TYMKOVICH, Chief Judge, joined by HARTZ, HOLMES, EID, and CARSON, Circuit Judges, dissenting.
I dissent from the majority's decision to vacate the en banc order as improvidently granted. The issues that initially led this court to grant en banc rehearing remain unresolved and it is important that they be addressed to give guidance to future panels and litigants. I write separately to identify why the panel majority wrongly decided the case in the first place and why its opinion will have deleterious effects going forward.
W. Clark Aposhian brought a pre-enforcement challenge to a rule promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that classifies bump stocks as machine guns1 under the National Firearms Act (NFA), 26 U.S.C. §§ 5801 – 5872. The Final Rule was promulgated to clarify the definition of "machinegun" found in 26 U.S.C. § 5845(b). See 27 C.F.R. § 479.11. The Final Rule required owners of bump stocks to destroy them or abandon them to the ATF by March 26, 2019. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,514 (Dec. 26, 2018) (Final Rule).
Mr. Aposhian sought a preliminary injunction from the district court to prevent ATF from enforcing the Final Rule. The district court denied the motion for a preliminary injunction, concluding Mr. Aposhian had not shown a likelihood of success on the merits of his challenge. Mr. Aposhian then filed an interlocutory appeal with this court.
The panel majority who considered the interlocutory appeal affirmed the district court. See Aposhian v. Barr , 958 F.3d 969 (10th Cir. 2020). The panel agreed with the district court that Mr. Aposhian had not demonstrated a likelihood of succeeding on the merits of his claim.2 But it departed from the district court's reasoning. While the district court had concluded the best reading of "machinegun" in § 5845(b) included bump stocks, the panel majority found the statute ambiguous. Id. at 985–88. Having identified an "ambiguity," the panel applied Chevron deference to the ATF's interpretation of § 5845(b). Id. at 988. Given this deference, Mr. Aposhian had no realistic path to success. The panel found ATF's application of § 5845(b) to bump stocks to be a permissible reading of the statute and denied Mr. Aposhian's request for a preliminary injunction.
I believe the panel majority went looking for ambiguity where there was none. Then, having found ambiguity, it unnecessarily placed a thumb on the scale for the government by invoking Chevron deference. The panel majority did this even though ATF maintained the statute was unambiguous and did not claim its interpretation was entitled to any special deference. The panel also applied Chevron even though ATF's Final Rule has criminal, as well as civil, consequences. In doing so, the panel majority further confused this court's law about whether Chevron can be waived and whether the rule of lenity can ever be used to resolve ambiguities when Chevron might also apply to statutes with criminal penalties. Now, by vacating the en banc order as improvidently granted, the court deprives us of the chance for much-needed clarity on these issues.
As an initial matter, Mr. Aposhian has shown a likelihood of success on the merits. Section 5845(b) unambiguously excludes bump stocks from its ambit. And even if the statute is ambiguous, Chevron deference is inapplicable here for several reasons. First, the government consistently refused to invoke Chevron deference for its interpretation. That is a decision we should respect. And second, because the Final Rule interprets a statute with criminal consequences, we must resolve ambiguity through the rule of lenity before ever reaching for Chevron . The manner in which the panel majority addressed these issues is not only wrong, it creates an unfortunate amount of uncertainty for future litigants.
The standard for reviewing a district court's denial of a preliminary injunction is abuse of discretion. Fish v. Kobach , 840 F.3d 710, 723 (2016). The district court abuses its discretion when its decision is premised "on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling." Id. (internal quotation marks omitted). We evaluate the district court's legal determinations de novo. Id.
I am not the first to spill ink over this issue, so I will keep my description of the statutory regime brief. See Aposhian, 958 F.3d 969 ; see also Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives , 920 F.3d 1 (D.C. Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 789, 206 L.Ed.2d 266 (2020). The NFA, originally passed in 1934, "imposes strict registration requirements on statutorily defined ‘firearms.’ " Staples v. United States , 511 U.S. 600, 602, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Machine guns are among those firearms subject to regulation and registration under the NFA. See 26 U.S.C. § 5845(a). Under § 5845(b), a "machinegun" is "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." The statutory definition also includes "any part designed and intended ... for use in converting a weapon into a machinegun." Id.
The Gun Control Act of 1968 (GCA), as amended by the Firearm Owners’ Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449, incorporated the NFA's definition of machine gun. 18 U.S.C. § 921(a)(23). These acts went beyond mere regulation, criminalizing almost all possession of machine guns. See id. at § 922(o)(1).
No such blanket prohibition exists for possession of semiautomatic rifles, which require separate pulls of the trigger for each bullet fired. As a result, firearm manufacturers have created accessories that allow a semiautomatic rifle to increase the speed with which it can fire a single round. A bump stock is one such accessory. It is intended to replace the rifle's standard stock, the part of the rifle that usually rests against the shooter's shoulder. This frees "the weapon to slide back and forth rapidly, harnessing the energy from the firearm's recoil either through a mechanism like an internal spring or in conjunction with the shooter's maintenance of pressure." Bump-Stock-Type Devices, 83 Fed. Reg. at 66,516. For a non-mechanical bump stock—one without an internal spring—to work as intended, the shooter must maintain backward pressure with his trigger finger and forward pressure on the rifle's barrel with his non-trigger hand. The channeled recoil from the bump stock then causes the trigger to reset and bump repeatedly against the shooter's stationary trigger finger, resulting in a rate of fire comparable to a machine gun.
ATF classified a bump stock device as a "machinegun" for the first time in 2006. Specifically, "ATF concluded that a device attached to a semiautomatic firearm that uses an internal spring to harness the force of a firearm's recoil so that the firearm shoots more than one shot with a single pull of the trigger is a machinegun." Id. at 66,514. But over the next decade, ATF issued classification decisions in which it repeatedly assured bump stock owners that non-mechanical bump stocks were not machine guns as understood in § 5845(b). Id.
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