Split en banc decision on bump stocks is a win for feds

CINCINNATI (CN) — In a blow to gun rights activists, an en banc appeals court on Friday split evenly in its ruling on the legality of bump stocks, which reinstates a lower court decision to allow the federal government to outlaw the rapid-fire devices as machine guns.

A three-judge panel had previously ruled in favor of Gun Owners of America Inc. and several other plaintiffs when it determined the government is not entitled to Chevron deference in the interpretation of a criminal statute. Established after a U.S. Supreme Court ruling in the 1984 case Chevron USA Inc. v. Natural Resources Defense Council Inc., the doctrine holds that a court may not substitute its own opinion in the place of a reasonable interpretation made by an administrative agency.

The panel's opinion was written by Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H. W. Bush, and overturned the decision of a federal judge who had previously denied the gun rights group's motion for an injunction.

Batchelder determined there is no ambiguity in the portion of the National Firearms Act that deals with machine guns, and because bump stocks do not fit the statutory definition, they cannot be outlawed.

The panel's opinion, however, was vacated when the Cincinnati-based appeals court opted to rehear the case with the full court, and oral arguments were heard in October.

Batchelder sat on the en banc court because of her involvement in the original decision, and took the place of U.S. Circuit Judge Chad Readler after the Donald Trump appointee recused himself.

Friday's split 8-8 order included opinions from two of the court's judges, U.S. Circuit Judge Helene White, an appointee of Barack Obama, and U.S. Circuit Judge Eric Murphy, also a Trump appointee.

In her opinion to uphold the district court's decision, White argued that not only is the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, entitled to Chevron deference, but that its interpretation of the statute is entirely reasonable.

She admitted the ban on bump stocks has "criminal sanctions," but emphasized the Chevron case itself dealt with a legislative rule whose violation could mean daily fines of up to $25,000 and imprisonment.

"There are many areas where Congress relies on agency expertise to implement laws with criminal applications," she said. "Just to name a few, we have highly technical and complex securities, tax, workplace safety, and environmental-law regimes in which the applicable agency exercises delegated authority to promulgate regulations fleshing out statutory provisions – regulations that have both civil and criminal applications."

White proceeded to analyze the statutory definition of machine gun, specifically the phrase "single function of the trigger," which she admitted could be interpreted one of two ways, either "shooter-focused" or "mechanical."

The "shooter-focused" definition classifies bump stocks as machine guns because a "single human action" causes a rapid-fire sequence of gunfire, while the "mechanical" interpretation does not, because the sequence is generated by the recoil of the gun.

"ATF's focus on the single human action upon the trigger is reasonable," White concluded. "The practical effect of the bump-stock device is to turn a semiautomatic firearm into a rapid-fire firearm that only requires the person firing the gun to pull the trigger once."

Bypassing the issue of Chevron deference entirely, White pointed out the ATF's vast experience in the implementation and application of the National Firearms Act should guide courts in their decisions.

She emphasized the agency responded to over 186,000 comments and demonstrated "a great degree of care in considering the issue" before it crafted the final rule that classified bump stocks as machine guns and banned them.

In his dissenting opinion, Murphy decried the ATF's decision to criminalize bump stocks through the use of "regulatory lawmaking," and said its final rule violates a "bedrock legal principle" of the United States.

The judge admitted that many people "would not understand why anyone would want to own a bump stock," but pointed out its legality can only be determined through legislation, none of which was passed in the wake of the 2017 Las Vegas shooting that spurred the ATF's final rule and subsequent litigation.

Murphy called the ATF's interpretation of the statutory language "head-scratching," and accused the agency of rewriting the law to mean "single pull of the trigger" instead of "single function of the trigger."

He warned the other members of the court that the application of Chevron deference to statutes with criminal sanctions that are not expressly spelled out by Congress would set a dangerous precedent.

"Under traditional principles," he said, "the ATF lacks the power to make criminal what was lawful. And reliance on Chevron throws overboard what has long been a critical check on an agency's ability to enact criminal rules: such rules 'must have clear legislative basis.' The bump stock rule does not."

Murphy urged courts to remember the "narrow duty" imposed by their country's framework, and to leave "the policy debate over whether to ban bump stocks where it belongs -- with the legislative branch accountable to the people."

He was joined in his dissent by Batchelder and Chief U.S. Circuit Judge Jeffrey Sutton, along with U.S. Circuit Judges Raymond Kethledge, Amul Thapar, John Bush, Joan Larsen, and John Nalbandian.

White was joined in her opinion by U.S. Circuit Judges Karen Moore, R. Guy Cole Jr., Eric Clay, Jane Stranch, Richard Griffin, Bernice Donald and Julia Gibbons.

In a reply to a request for comment, the ATF provided the following statement: "The bump stock rule is still in effect, and, as always, we cannot comment on matters of litigation."

Gun Owners of America said its fight is not over.

"The fact that the Sixth Circuit was so divided that it could not even give us an answer to our question means that the Supreme Court must eventually decide whether unelected ATF bureaucrats have the power to create new federal crimes out of thin air," said Erich Pratt, senior vice president of the group.

Pratt said the group's attorneys will start work soon on a petition for certiorari to the U.S. Supreme Court.

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