Bump Stocks, Chevron, circuit schisms and ATF Firearm Interpretations — Oh My!
In a complex 10th Circuit case with actions described by attorneys as “unusual,” everything from Congressional oversight to the rights of agencies to interpret the statute as they see fit fall under the umbrella of the case.
However, the main issue that’s being raised in a cert petition to the U.S. Supreme Court is whether or not a court can force an agency to accept deference to their expertise — even if the agency has already rejected it.
When the 10th Circuit Court of Appeals made the “unusual” decision to revoke its agreement to hear en banc oral arguments on a case back in March, it was just another chapter in a continually evolving case surrounding bump stocks — a firearm attachment which allows a non-automatic weapon to simulate automatic fire.
The case, Aposhian v. Garland—which has survived several U.S. attorney generals—began with a simple issue: whether or not the Bureau of Alcohol, Tobacco and Firearms could revoke the legality of a firearm attachment they had previously said was legal.
However, the case grew to include whether or not a common principle of administrative law can be used in a criminal context, if that use constitutes a taking of rights if the ATF can suddenly decide to change their stance on a gun attachment without direct direction from Congress and, also, whether or not the allegedly last-surviving legally-purchased bump stock will ever be destroyed by the ATF or returned, legally, to its owner by the courts.
Perhaps one of the most interesting aspects of the case is that the 10th Circuit revoked the oral arguments granted after they’d already held oral arguments. In the first-ever remotely held oral arguments by the 10th Circuit Court of Appeals, the en banc court grilled both the ATF and Aposhian’s counsel over the finite details of the arguments and bump stock operations.
The case history dates back several years but arose from a sudden change in ATF stance towards bump stocks following the 2017 Las Vegas shooting, where a gunman used a rifle fitted with a bump stock to kill 58 and injure more than 400 people.
Following the shooting, the ATF released a Final Rule which classified bump stocks as machineguns, which they had previously stated they were not. The client in the 10th Circuit case, W. Clark Aposhian, purchased his bump stock prior to the establishment of the Final Rule and challenged the rule banning bump stocks in federal court. He argued that it conflicted with an earlier established rule that said certain bump stocks weren’t machineguns.
His challenge to the rule was rejected and in 2020, the 10th Circuit Court of Appeals upheld that decision, finding Aposhian failed to establish a likelihood of success on the merits. But the case is now beyond the simple issue of whether a government agency can change its mind about the interpretation of a statute — it also calls into question a longstanding guiding principle of law — Chevron Deference, which the court used to justify its decision allowing the ATF to change its stance.
Chevron deference is one of the most important principles in administrative law, according to the Legal Information Institute of Cornell Law School. In the case Chevron U.S.A. v. Natural Resources Defense Council, the U.S. Supreme Court set a legal test as to when a court should defer to an agency’s answer or interpretation of administrative actions — so long as Congress hasn’t spoken “directly” to the issue or when judicial deference is appropriate where the agency answer isn’t unreasonable.
And, to make things even more complicated, the ATF waived the use of Chevron deference during the lowest court proceedings, but the court insisted on using Chevron deference despite the ATF’s waiving.
Caleb Kruckenberg of the New Civil Liberties Alliance, the firm representing Aposhian in the case, expressed continual concern on how the use of this mainly administrative technique in this criminal case could turn many Americans into criminals without warning as it listed bump stocks as technically being machineguns, which ownership of can hold a prison sentence penalty.
When the ATF changed its stance to bump stock being illegal, it turned some gun owners into criminals, according to Kruckenberg. The agency previously provided written statements to purchasers attesting to the legality of the bump stocks, but after the Final Rule, their ownership was suddenly illegal.
And, even members of the 10th Circuit were concerned about the standard they’d left in place by revoking oral arguments and letting the lower court ruling stand — with multiple judges, including Chief Judge Timothy Tymkovich, dissenting and expressing concern over the court’s decision to revoke hearing oral arguments.
“I believe the panel majority went looking for ambiguity where there was none,” Tymkovich wrote in his dissent. “Then, having found ambiguity, it unnecessarily placed a thumb on the scale for the government by invoking Chevron deference.”
The dissenting opinions came from Tymkovich and judges Harris Hartz, Jerome Holmes, Allison Eid and Joel Carson — notably all Republican appointees. Each wanted to proceed with the en banc rehearing, according to the order. Tymkovich, Hartz, Eid and Carson wrote separate dissents from the order.
“The en banc majority has done the circuit no favors today,” Tymkovich wrote. “By dismissing the en banc order, the majority perpetuates confusion on difficult issues in the circuit.” He concluded his dissent by hoping that the issues he raised would be clarified “sooner rather than later.”
And, after the 10th Circuit made this choice, a schism arose between the 10th and 6th Circuits about their stance on Chevron deference and how it impacts bump stocks. In the 6th Circuit ruling, the court found that the ATF overstepped its authority in making the attachments illegal. With this schism, some experts worried that there is now no consensus among the courts and someone who may be legally owning a bump-stocked weapon in the 6th Circuit could be arrested for owning one in the 10th.
Aaron-Andrew Bruhl, a William & Mary Law School law professor and Chevron doctrine specialist, told Law Week in April he would compare the split between the circuits on Chevron interpretation as two titans going up against each other, like Godzilla and King Kong. Except in this case, the titan Chevron is weakened and the “airplanes are already circling,” he said.
Chevron has been cited thousands of times in cases but has been “under siege” for about a decade, Bruhl said. Chevron went unquestioned in the courts for a long time but the doctrine is now controversial. Particularly because of attempts to cut back, weaken or eliminate the doctrine at high levels in the U.S. courts.
In both cases, Chevron’s application has consequences that could hold criminal penalties for people totally unaware that they’re breaking the law. According to Kruckenberg, the problem is that ATF is interpreting a criminal statute. Punishment for violating the machine gun ban could be a sentence of a decade in prison. “If someone’s a first-time offender, and they’re found with a bump stock, they could potentially be sent to prison for 10 years,” Kruckenberg said in April.
Kruckenberg also said in April he knew of at least two cases — one in Texas and another in Nebraska — where ATF and U.S. attorneys prosecuted such cases. Meanwhile, other cases involving bump stocks have been rejected by SCOTUS, such as one in Maryland which was rejected in May.
One of the main arguments that Kruckenberg has with the use of Chevron in such cases relates to the rule of lenity, which allows for interpretation of an unclear law in ways the most lenient and least amount of criminal law, he said. “In our case, we have these two issues and they’re running into each other.”
The cert petition mentions that this case is an “attractive vehicle for addressing” the legal issues regarding Chevron’s scope, as there are no disputed factual issues, and the parties only disagree about the proper interpretation of a federal criminal statute.
“Most importantly, whether Chevron deference applies here is likely outcome determinative,” the cert petition states.