(CN) – A 10th Circuit panel decided Tuesday to deny a man’s request to keep his bump stock while his appeal over the federal government’s ban on the firearm device is heard.
Chairman of the Utah Shooting Sports Council W. Clark Aposhian sued the Bureau of Alcohol, Tobacco, Firearms and Explosives in January after the Trump administration instituted a rule change that categorizes 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.
A federal judge denied Aposhian’s request for preliminary injunction in March, leading to his appeal to the 10th Circuit. The panel allowed him to keep his bump stock temporarily while it reviewed the situation.
But on Tuesday, the three-judge panel reversed course. In a two-page order, the panel said “an injunction pending appeal is not a matter of right; it is an exercise of the court’s discretion” but offered no other reason for its change of heart.
U.S. Circuit Judges Scott Matheson and Gregory Phillips, both Barack Obama appointees, voted to deny Aposhian’s request, while U.S. Circuit Judge Joel Carson said he would have granted the motion. Carson is a Donald Trump appointee.
A gun enthusiast, Aposhian says he uses the bump stock device he legally purchased in 2014 for target shooting. The device allows a semiautomatic gun to mimic the way an automatic weapon fires.
“Actually, when my client bought the device, it came with a laminated copy of the ATF’s approval for the device itself, and the ATF approval says very clearly this is not a machine gun and it’s not subject to the regulation,” said Caleb Kruckenberg, an attorney with the New Civil Liberties Alliance representing Aposhian.
There are some 520,000 such devices across the country, but as of March 26 people who own them face criminal penalties or fines if they do not turn them in or destroy them.
The rule change drew multiple legal challenges, including one currently before the D.C. Circuit after a federal judge denied gun groups’ request to temporarily block the ban.
Aposhian claims a bump-stock ban should come from Congress, not from an executive branch agency. He also says the ban makes criminals of people who were operating within the bounds of the law when they bought the devices.
“We don’t take a position on whether bump stocks should be legal or not, our position is that bump stocks have been legal and because the law is the way it is, if Congress wants to change that then only Congress can change that,” Kruckenberg said.
“If a government wants to ban these devices then it’s their prerogative to do that, but they’re accountable to their voters and here the ATF is not,” Kruckenberg added. “They passed this ban and they don’t really have anyone to answer to for that.”
Although Aposhian may ultimately win his appeal, Kruckenberg noted his client intends to follow the law and will surrender his bump stock devices as is now required.
Neither the Justice Department nor the ATF immediately returned a request for comment on the ruling.