10th Circuit Backs Out of Opening Phase of Fight Over Bump Stock Ban

The court’s about-face on an en banc rehearing of a preliminary injunction denial means a Utah man must give up his bump stock while his challenge of the ban goes through the courts.

A bump stock is attached to a semiautomatic rifle at the Gun Vault store and shooting range on Oct. 4, 2017, in South Jordan, Utah. (AP Photo/Rick Bowmer)

(CN) — A deeply divided 10th Circuit declined Friday to revisit whether the last man in America to legally own a bump stock can keep his device while a federal lawsuit challenging the legality of the devices goes through the courts.

The device banned in 2019 allows a firearm to operate like a machine gun. The point of the case is whether or not a bump stock turns a legal firearm into an illegal machine gun.

W. Clark Aposhian, chairman of the Utah Shooting Sports Council, sued the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in January 2019 after the Trump administration instituted a rule change categorizing bump stocks as machine guns, effectively banning people from owning them.

The rule change came in response to the 2017 massacre at a country music festival in Las Vegas, where a man killed 58 people and injured hundreds more using a bump stock device. The federal government therefore contends the plastic accessory is illegal since it can make a legal semiautomatic weapon behave like a machine gun.

Aposhian counters banning bump stocks takes an act of Congress, and should not be left to unelected ATF bureaucrats under the control of the Department of Justice.

A federal judge in the District of Utah denied Aposhian’s request for preliminary injunction in March 2019, leading to his first 10th Circuit appeal. The panel allowed him to keep his bump stock temporarily while it reviewed the situation, but ultimately upheld the preliminary injunction denial.

During the January hearing, U.S. Circuit Judge Carlos Lucero questioned whether the appeals court should be hearing the case at all.

“I thought we had a case of substantial national importance before us, but as I studied this case I’ve continued to have serious reservation about the jurisdiction of our en banc court. And that is because we do not have a final judgment before us,” the Bill Clinton appointee said. “Why isn’t this case nothing more than a request for an advisory opinion to the trial court below creating basically the law of the case when the case hasn’t even been heard?”

Although the panel’s two-page opinion did not explain its rationale for vacating the en banc grant, Lucero and five other judges agreed on the outcome: Clinton appointee U.S. Circuit Judge Mary Beck Briscoe and U.S. Circuit Judges Scott M. Matheson Jr., Robert E. Bacharach, Gregory A. Phillips and Nancy L. Moritz, all Barack Obama appointees.

And then came 45 pages of dissent.

“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,” wrote Chief U.S. Circuit Judge Timothy M. Tymkovich in a 29-page dissent. In his review of the case, the George W. Bush appointee said Aposhian made a strong case for receiving the preliminary injunction sought.

“Now, by vacating the en banc order as improvidently granted, the court deprives us of the chance for much-needed clarity on these issues,” Tymkovich wrote.

In a 3-page dissent, U.S. Circuit Judge Harris L. Hartz wrote that the courts should interpret the law, not the agency, as argued by the U.S. attorneys defending the government.

“The question here is whether a particular type of bump stock is a ‘machine gun’ as defined by 26 U.S.C. § 5845(b). This is a matter of statutory interpretation, inherently a responsibility of the courts. As Chief Justice Marshall said more than two centuries ago, ‘It is emphatically the province and duty of the judicial department to say what the law is,” the George W. Bush appointee wrote, citing Marbury v. Madison.

U.S. Circuit Judge Jerome A. Holmes, also a Bush appointee, joined Donald Trump-appointed Circuit Judges Allison H. Eid and Joel M. Carson in the dissent.

Aposhian purchased his Slide Fire device in 2014, described in his appeal as a “hollow shoulder stock intended to be installed over the rear of an AR-15” and “intended to assist persons whose hands have limited mobility to ‘bump-fire’ an AR-15 type rifle.”

Under the ATF’s ban, anyone caught in possession of a bump stock can face criminal charges and up to a decade in prison.

According to his attorneys, Aposhian surrendered his bump stock after his initial appeal for an injunction was denied.

The case will continue before Obama appointee U.S. District Judge Jill N. Parrish in the District of Utah.

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