Hardin v. Bureau of Alcohol
| Docket Number | 20-6380 |
| Decision Date | 25 April 2023 |
| Parties | Scott A. HARDIN, Plaintiff-Appellant, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, an agency of the Department of Justice; Steven M. Dettelbach, Director Bureau of Alcohol, Tobacco, Firearms, and Explosives; United States of America; Merrick B. Garland, Attorney General, in his official capacity as Attorney General of the United States, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:19-cv-00056—David J. Hale, District Judge.
ARGUED: Jason Todd Hardin, HARDIN LAW, PLLC, Louisville, Kentucky, for Appellant. Brad Hinshelwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jason Todd Hardin, HARDIN LAW, PLLC, Louisville, Kentucky, J. Allan Cobb, COBB LAW PLLC, Louisville, Kentucky, for Appellant. Brad Hinshelwood, Abby C. Wright, Kyle Edwards, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
Before: GILMAN, McKEAGUE, and BUSH, Circuit Judges.
GILMAN, J., delivered the opinion of the court in which McKEAGUE, J., joined. BUSH, J. (pp. 902-04), delivered a separate opinion concurring in the judgment.
The placement of a bump stock on a semiautomatic rifle causes the rifle to function essentially like a machinegun by dramatically increasing the rate of fire. And the possession of a machinegun is a criminal offense under the Gun Control Act of 1968. This raises the question of whether a bump stock is a machinegun "part" as defined by the National Firearms Act of 1934. The question is a close one on which reasonable jurists have disagreed, a disagreement caused by ambiguities in how the applicable statute defines the term "machinegun."
An Act of Congress could clear up the ambiguities, but so far Congress has failed to act. The Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) has been on both sides of this issue, with its current regulation (the Rule) banning bump stocks as a machinegun part. In this situation, the rule of lenity that is applicable to criminal offenses requires us to rule in favor of Hardin. We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
The Gun Control Act provides that "it shall be unlawful for any person to transfer or possess a machinegun." 18 U.S.C. § 922(o)(1). It incorporates by reference (see id. § 921(a)(24)) the definition of a machinegun as set forth in the National Firearms Act, which reads as follows:
The term "machinegun" means 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 term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, 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 if such parts are in the possession or under the control of a person.
26 U.S.C. § 5845(b).
For over a decade, the ATF, to which Congress has delegated the authority to administer the National Firearms Act and the Gun Control Act, maintained that a bump stock is not a machinegun part. But in 2018, after a gunman in Las Vegas, Nevada used bump stocks attached to semiautomatic rifles to kill 58 people and injure roughly 500 more in the span of approximately 10 minutes, the ATF reversed its position by promulgating the Rule. The Rule gave possessors of bump stocks 90 days from its effective date during which to destroy or abandon their bump stocks, after which they would be in violation of the Gun Control Act's prohibition on machineguns and their parts. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018).
The appellant in this case, Scott Hardin, owned several bump stocks. Following the ATF's promulgation of the Rule, Hardin brought an action in the Western District of Kentucky, challenging the Rule as exceeding the ATF's statutory authority. The district court granted the ATF's motion for judgment on the administrative record. Hardin now appeals.
Whether a bump stock is a machinegun part depends on how one interprets the definition of a machinegun as set forth in the National Firearms Act. In particular, the dispute focuses on the words "automatically" and "a single function of the trigger." Those courts of appeals that have faced the issue are divided on the answer, and the Supreme Court has not weighed in. On one side, saying that a bump stock is included within the definition of a machinegun, are the Tenth Circuit and the D.C. Circuit. See Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020), aff'g 374 F. Supp. 3d 1145 (D. Utah 2019), en banc reh'g order vacated as improvidently granted, 989 F.3d 890 (10th Cir. 2021) (en banc), cert. denied, — U.S. —, 143 S. Ct. 84, 214 L.Ed.2d 12 (2022); Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1 (D.C. Cir. 2019) (per curiam), aff'g 356 F. Supp. 3d 109 (D.D.C. 2019), cert. denied, — U.S. —, 140 S. Ct. 789, 206 L.Ed.2d 266 (2020). The opposite view is taken by the Fifth Circuit. See Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023) (en banc), rev'g 20 F.4th 1004 (5th Cir. 2021), and Cargill v. Barr, 502 F. Supp. 3d 1163 (W.D. Tex. 2020), petition for cert. filed (Apr. 7, 2023). And our own circuit is split down the middle, with eight judges voting to uphold the Rule and eight judges voting to strike it down. See Gun Owners of Am., Inc. v. Garland, 19 F.4th 890 (6th Cir. 2021) (en banc), vacating by an equally divided court 992 F.3d 446 (6th Cir. 2021), and aff'g by an equally divided court Gun Owners of Am., Inc. v. Barr, 363 F. Supp. 3d 823 (W.D. Mich. 2019), cert. denied, — U.S. —, 143 S. Ct. 83, 214 L.Ed.2d 13 (2022).
A total of 22 opinions are set forth in the above-cited cases, which fully explore all aspects of the issue in nearly 350 pages of text. We therefore have the benefit of being able to draw our own conclusions from these erudite opinions without having to repeat them verbatim.
Hardin argues that the statutory definition of a machinegun unambiguously excludes bump stocks, whereas the ATF argues that the best reading of the statute compels the opposite conclusion. Without repeating the intricacies of those positions here, there can be no doubt that a significant number of reasonable jurists have reached diametrically opposed conclusions as to whether the definition of a machinegun includes a bump stock.
The viability of competing interpretations is exemplified not only by the myriad and conflicting judicial opinions on this issue, but also by the ATF's own flip-flop in its position. And because the statute is "subject to more than one reasonable interpretation," it is ambiguous. See Donovan v. FirstCredit, Inc., 983 F.3d 246, 256 (6th Cir. 2020) (quoting N. Fork Coal Corp. v. Fed. Mine Safety & Health Comm'n, 691 F.3d 735, 740 (6th Cir. 2012)); see also N. Fork Coal Corp., 691 F.3d at 740 ( .
Under what has become known as Chevron deference, "a court review[ing] an agency's construction of the statute which it administers . . . is confronted with two questions." Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984):
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Id. at 842-43, 104 S.Ct. 2778. Having determined that the statutory language is ambiguous, we would typically apply Chevron deference to uphold the Rule so long as it was not "arbitrary, capricious, or manifestly contrary to the statute." See id. at 844, 104 S.Ct. 2778.
But both parties urge us to determine the legality of the Rule without relying on Chevron deference. The government has not invoked Chevron deference, believing that "it is unnecessary to consider what level of deference, if any, the rule should be accorded." And Hardin's view is, first, that the government has waived the application of Chevron deference and, alternatively, that Chevron deference is inapplicable when the underlying statute carries the possibility of criminal sanctions. We need not resolve the question of whether the government can waive the application of Chevron deference because we conclude that the statutory scheme before us is one that does not warrant the application of such deference.
The Supreme Court has not clearly identified the bounds of Chevron deference with respect to an agency's construction of a statute with criminal applications. To be sure, Chevron itself involved a statute whose violation could incur criminal penalties. See id. at 840, 104 S.Ct. 2778; 42 U.S.C. § 7413...
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