Petition Filed for En Banc Rehearing of 10th Circuit Bump Stocks Case

Plaintiff challenges ATF rulemaking process

The New Civil Liberties Alliance on June 19 filed a petition requesting a rehearing en banc in a 10th Circuit Court of Appeals case surrounding legal ownership of firearm bump stocks. 

The case, Aposhian v. United States, surrounds issues relating to bump stocks. Bump stocks allow shooters of semiautomatic guns “to initiate a continuous firing cycle with a single pull of the trigger,” according to the ATF website. The gun attachments became a national focal point following a 2017 mass shooting in Las Vegas where a gunman used a rifle fitted with a bump stock to kill 58 and injure 413. 

W. Clark Aposhian, represented by the New Civil Liberties Alliance, had purchased a bump stock before the ATF issued a final rule in 2018 that classified bump stocks as machineguns. Aposhian challenged that rule in federal court, saying it conflicted with an earlier established rule that said certain bump stocks were not machineguns.

His challenge to the rule was rejected, and the 10th Circuit Court of Appeals in May upheld that decision, finding Aposhian failed to establish a likelihood of success on the merits. 

According to the 10th Circuit’s June opinion, the National Firearms Act provides definitions for what constitutes a machinegun and also charges the U.S. attorney general with enforcement of the act. Another law, the Gun Control Act of 1968, imposes both criminal prohibitions and a regulatory licensing scheme on certain firearm transactions and also delegates rulemaking authority to the attorney general. The attorney general has delegated enforcement of the NFA and GCA to the AF.

As cited by the 10th Circuit, “ATF explained that although Congress defined ‘machinegun’ in the NFA, ‘it did not further define the components of that definition . . . Congress thus implicitly left it to the [Attorney General] to define ‘automatically’ and ‘single function of the trigger’ in the event those terms are ambiguous.’” 

The appeal argues the panel majority “committed two main legal errors.” The NCLA press release release claims court erred in applying the Chevron doctrine, a judicial doctrine that allows courts to defer to agency interpretations of ambiguous statutes. The court applied Chevron in this instance, invoking ATF expertise, however, the  ATF “specifically waived that argument,” according to the release.

Aposhian was “the last man in America” to legally own this kind of stock, according to the NCLA press release. He is challenging the ATF ban on such stocks as “an unlawful effort to amend a statute via regulation.” The appeal asks for the case to be retried and the errors corrected, according to the document.

“Our position has been pretty clear all along,” Caleb Kruckenberg, litigation counsel with NCLA, said. “The statute passed by Congress doesn’t ban bump stocks, and that’s the position the ATF itself took for years.”

The Final Rule issued by the ATF “without statutory or constitutional authority” effectively made “500,000 innocent purchasers into felons,” according to the release. 

For this case, Kruckenberg said it was inappropriate to use Chevron in a criminal context. He added that the ATF had in essence said they did not want to be deferred to on this matter because it did not invoking expertise.

Secondly, the majority “disregarded the rule of lenity,” according to the report. “When a criminal statute is ambiguous, the rule of lenity dictates that the law be interpreted to the benefit of the criminal defendant.”

In a criminal case, Chevron goes against the rule of lenity, which allows for interpretation of an unclear law in ways 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 statute in question is a criminal law, and Aposhian is not charged with a crime and thus the lenity rule applies, according to the release. However, the majority applied Chevron to “resolve the alleged ambiguity in the statute.”

“U.S. Supreme Court precedent and prior 10th Circuit precedent point in the opposite direction from what the panel majority held on both of these issues,” according to the release.

In May, Judge Joel Carson wrote a dissenting opinion stating that by turning a blind eye and Chevron being applied “the majority placed an uninvited thumb on the scale in favor of the government.” 

— Avery Martinez

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