News Alert: Partner Erik Jaffe Files Brief on Behalf of Firearms Policy Foundation Appealing Bumpstock Ban

On March 4, 2019, attorneys for the Firearms Policy Coalition and Firearms Policy Foundation filed opening briefs in their consolidated appeals with the Court of Appeals for the D.C. Circuit in the ongoing federal litigation challenging the ATF’s bump-stock ban, scheduled to go into effect March 26.

On February 25, United States District Judge Dabney L. Friedrich denied motions for preliminary injunction in the matter. The ruling came little over one year after President Trump directed the Department of Justice, at the time headed by Attorney General Jeff Sessions, to “as expeditiously as possible” propose “a rule banning all” bump-stock-type devices. The challenged Final Rule was signed by Acting Attorney General Matthew Whitaker and published on December 18, 2018.

Counsel for FPC and FPF filed notices of appeal on February 25, and on February 26, they requested an expedited appeal schedule from the Court of Appeals for the D.C. Circuit. Last Friday, March 1, a three-judge panel of the D.C. Circuit granted FPC’s and FPF’s joint motion to expedite the briefing and arguments, setting March 4 as the deadline to file the opening briefs. The government’s answering brief will be due on March 13, and the appellant’s reply brief will be due on March 15. Oral arguments will be heard by the Court of Appeals on March 22 at 9:30 a.m.

In its brief, FPC argues that the Rule is invalid because it was issued by then-Acting Attorney General Matthew Whitaker. FPC explains that the designation of Mr. Whitaker – who was neither in the Department of Justice chain of command nor confirmed by the Senate – to serve in that role was both illegal and unconstitutional.

In the Guedes appeal, FPF argues that the text of the federal statutes at issue in the Final Rule are clear and unambiguous, that the rule of lenity precludes the ATF’s proposed new definition of ‘machinegun’, and that the rule is unreasonable, arbitrary, and capricious. The brief also argues that the “district court abused its discretion in finding the statutory language ambiguous and erred as a matter of law in according ATF Chevron deference regarding the terms ‘single function of the trigger’ and ‘automatically’.”

Thomas C. Goldstein, Daniel Woofter, Charles H. Davis, and Erica Oleszczuk Evans of Goldstein & Russell, P.C., are on the brief for the FPC appeal. Attorneys Joshua Prince and Adam Kraut of Civil Rights Defense Firm, P.C., and Erik Jaffe of Schaerr Jaffe LLP are on the brief for the FPF appeal.

Unless the appeals result in a temporary injunction or stay of enforcement, the ATF’s Final Rule will take effect on March 26, when the federal government will consider the affected devices to be illegal “machineguns” and carry severe criminal penalties including large fines and up to ten years in federal prison.

FPC and FPF remain committed to protecting Americans who own and possess bump-stock devices from the ATF’s unlawful Final Rule.