Fifth Circuit Denies ATF's Request For Stay On The Districts Courts FRT Injunction
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AmmoLand Shooting Sports NewsFifth Circuit Denies ATF's Request For Stay On The Districts Courts FRT Injunction
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AmmoLand Shooting Sports NewsCase: 23-11138 Document: 51-1 Page: 1 Date Filed: 11/30/2023
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
November 30, 2023
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 23-11138 National Association v. Garland
USDC No. 4:23-CV-830
Enclosed is an order entered in this case.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Melissa V. Mattingly, Deputy Clerk
504-310-7719
Ms. Laura Bakst
Mr. Glenn D. Bellamy
Mr. Whitney A Davis
Mr. Bradley Hinshelwood
Mr. Gary Lawkowski
Ms. Karen S. Mitchell
Mr. Benjamin Harry Beryll Sley
Mr. Mark Bernard Stern
Mr. David Warrington
Case: 23-11138 Document: 51-2 Page: 1 Date Filed: 11/30/2023
United States Court of Appeals
for the Fifth Circuit
___________
No. 23-11138
___________
National Association for Gun Rights, Incorporated;
Texas Gun Rights, Incorporated; Patrick Carey; James
Wheeler; Travis Speegle,
Plaintiffs—Appellees,
versus
Merrick Garland, U.S. Attorney General; United States
Department of Justice; Steven Dettelbach, In his official
capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives;
Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:23-CV-830
______________________________
UNPUBLISHED ORDER
Before Haynes, Willett, and Duncan, Circuit Judges.
Case: 23-11138 Document: 51-2 Page: 2 Date Filed: 11/30/2023
No. 23-11138
Don R. Willett, Circuit Judge: 1
Three individuals and two organizations—National Association for
Gun Rights, Inc. and Texas Gun Rights, Inc. (collectively, Plaintiffs)—
brought a challenge under the Administrative Procedure Act against the U.S.
Attorney General, the U.S. Department of Justice, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF), and the Director of the ATF
(collectively, Defendants) over the validity of their interpretation of
“machinegun” in the National Firearms Act and the Gun Control Act. In a
2018 regulation, the ATF expanded the definition and determined that
forced-reset triggers (FRTs)—assemblies that allow the trigger of a semi-
automatic weapon to reset quicker than it otherwise would using a standard
trigger-return spring—are “machineguns.” Plaintiffs argue that Defendants’
interpretation is unlawful and that FRTs are not machineguns.
In August 2023, the district court concluded that the ATF’s expanded
definition of “machinegun” was likely erroneous and granted a temporary
restraining order to the individual Plaintiffs. It later held an evidentiary
hearing on the function of FRTs and enjoined Defendants “from
implementing or enforcing against the parties in this lawsuit, in any civil or
criminal manner described [in the order], the ATF’s expanded definition of
ʻmachinegun.’”
Defendants appealed and moved the district court to enter a stay
pending appeal. The district court denied the motion. Defendants then
moved this court for a stay.
1
Judge Haynes: “I would send this case to a merits panel as an expedited appeal
and would grant an administrative stay for a brief period of time deferring the question of
the stay pending appeal to the oral argument merits panel which receives this case.”
2
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No. 23-11138
Defendants have fallen short of meeting their burden to justify a stay
pending appeal. Their motion to stay the district court’s preliminary
injunction pending appeal is therefore DENIED.
I
“A stay is not a matter of right, even if irreparable injury might
otherwise result. It is instead an exercise of judicial discretion, and [t]he
propriety of its issue is dependent upon the circumstances of the particular
case.” Plaquemines Par. v. Chevron USA, Inc., 84 F.4th 362, 373 (5th Cir. 2023)
(quoting Nken v. Holder, 556 U.S. 418, 433 (2009)). “A stay pending appeal
is extraordinary relief for which defendants bear a heavy burden.” Id.
(internal quotation marks and citations omitted).
In deciding whether to grant a stay, we consider four factors: “(1)
whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest
lies.” Nken, 556 U.S. at 434 (citation omitted). “The first two factors . . . are
the most critical.” Id. “The district court’s findings of fact are reviewed for
clear error and its legal conclusions de novo.” Texas v. United States, 40 F.4th
205, 215 (5th Cir. 2022) (per curiam).
A
The district court correctly concluded that Defendants, as the parties
seeking the stay, have not made a strong showing that they are likely to
succeed on the merits. The federal statutes at issue define “machinegun” in
relevant part as “any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger” and “any part designed and
intended . . . for use in converting a weapon into a machinegun.” 26 U.S.C.
3
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No. 23-11138
§ 5845(b); see also 18 U.S.C. § 921(a)(24). The ATF expanded this definition
to add, in relevant part:
For purposes of this definition, the term “automatically” as it
modifies “shoots, is designed to shoot, or can be readily
restored to shoot,” means functioning as the result of a self-
acting or self-regulating mechanism that allows the firing of
multiple rounds through a single function of the trigger; and
“single function of the trigger” means a single pull of the
trigger and analogous motions. The term “machine gun”
includes a bump-stock-type device, i.e., a device that allows a
semi-automatic firearm to shoot more than one shot with a
single pull of the trigger by harnessing the recoil energy of the
semi-automatic firearm to which it is affixed so that the trigger
resets and continues firing without additional physical
manipulation of the trigger by the shooter.
27 C.F.R. § 479.11 (2018).
In light of our recent en banc decision in Cargill v. Garland, 57 F.4th
447 (5th Cir. 2023), Defendants cannot show a strong likelihood of success
on the merits. Although not binding, the Cargill plurality’s interpretation of
the statutory definition of “machinegun” is nonetheless persuasive. The
Cargill plurality concluded, and we agree, that the definition unambiguously
refers “to the movement of the trigger itself, and not the movement of a
trigger finger.” 2 See id. at 460. The plurality’s approach favors Plaintiffs, not
2
Four judges concurred in the judgment (three of those four also concurring in
part) and said that the statutory definition of “machinegun” was ambiguous as to whether
“single function of the trigger” refers to what the trigger does or what the shooter does to
the trigger. See Cargill, 57 F.4th at 473–79 (Judge Haynes, joined by Chief Judge
Richman, concurred in the judgment only because the statute is “ambiguous such that
the rule of lenity favors the citizens,” and Judge Ho, joined by Chief Judge
Richman and Judge Southwick, concurred in part and in the judgment). These
judges would have applied the rule of lenity to find in favor of the plaintiffs challenging the
4
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No. 23-11138
Defendants. As the district court noted, it is undisputed that, “[w]hen firing
multiple shots using an FRT, the trigger must still reset after each round is
fired and must separately function to release the hammer by moving far
enough to the rear in order to fire the next round.” The district court
evaluated the Defendants’ zip-tie test, which Defendants argue shows that
FRTs fire like machineguns. “In a machine gun,” the district court
explained, “the trigger must be held in its rearmost position for the gun to fire
automatically.” The district court found that, to the contrary, if the FRT
trigger is constantly held in its most rearward position, “the weapon would
malfunction and not fire subsequent shots.” “Instead, the elasticity in the zip
tie allows for sufficient movement to allow for a trigger reset. All this [zip-tie]
test establishes is that the trigger need not move to its most rearward
position.” Under the Cargill plurality’s reasoning, then, that the FRT trigger
must reset means that the weapon does not shoot by a “single function of the
trigger” and is thus not a machinegun. See 26 U.S.C. § 5845(b) (emphasis
added). Defendants do not grapple with these undisputed factual findings by
the district court to argue otherwise. Their broad, unsubstantiated
statements comparing FRT-equipped weapons to machineguns do not
satisfy their “heavy burden” for a stay. See Plaquemines Par., 84 F.4th at 373.
Defendants fare no better under Cargill’s rule-of-lenity analysis,
which garnered majority support. See Cargill, 57 F.4th at 469–71, 473–79. If
the statutory definition of machinegun is indeed ambiguous—not
unambiguous, as the Cargill plurality concluded—then the rule of lenity
definition’s application to bump stocks. Id. The plurality agreed that the rule of lenity would
apply if the statute were ambiguous. Id. at 469. Three other judges—Higginson,
Dennis, and Graves—dissented from the court’s decision that a bump stock is not a
machine gun and from the court’s use of lenity. See id. at 479–83.
5
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No. 23-11138
means that the ambiguity should be resolved in Plaintiffs’ favor. See id.
Defendants argue that Cargill is inapplicable because it concerned
non-mechanical bump stocks, whereas FRTs are more like mechanical bump
stocks—which Cargill said, in dicta, might be machineguns. See id. at 462 &
n.8. This argument fails. The Cargill plurality’s statutory analysis stands
independently of the facts of that case, as do Cargill’s comments on the rule
of lenity. Cargill is thus persuasive here. Moreover, Defendants point only to
Cargill’s dicta to argue that FRTs are like mechanical bump stocks and are
thus machineguns—but an argument based on dicta alone does not amount
to a “strong showing” that Defendants are likely to succeed on the merits.
See Nken, 556 U.S. at 434.
Defendants’ other arguments are likewise unconvincing. The district
court was right that Defendants cannot show a strong likelihood of success
on the merits merely by pointing to (1) the U.S. Supreme Court’s cert grant
in Garland v. Cargill, No. 22-976 (Nov. 3, 2023), or (2) the Eastern District
of New York’s decision that bump stocks are machineguns, see United States
v. Rare Breed Triggers, LLC, No. 23CV369NRMRML, 2023 WL 5689770
(E.D.N.Y. Sept. 5, 2023).
Defendants thus fail on one of the “most critical” stay factors. See
Nken, 556 U.S. at 434.
B
Defendants’ “case on the merits is sufficiently weak to justify denying
a stay on that basis alone.” See Texas, 40 F.4th at 215. But we briefly note that
Defendants’ fail to satisfy their burden on the remaining three factors, too.
Defendants argue that they will suffer irreparable harm because the
injunction will make it harder for them to seize FRTs—but this assumes
(wrongly, in our view) that FRTs are illegal. They also argue that prohibited
6
Case: 23-11138 Document: 51-2 Page: 7 Date Filed: 11/30/2023
No. 23-11138
persons may acquire FRTs—but FRTs only work with preexisting firearms,
so to the extent that Defendants are concerned that prohibited persons will
acquire FRTs, they already have the authority to arrest those persons for
possession. Defendants’ other arguments, including that pre-enforcement
judicial review violates separation of powers, are also unpersuasive, as the
district court already explained.
The last two factors—substantial harm to Plaintiffs and
considerations of the public interest—do not favor Defendants, either. The
district court’s reasoning was apt, and we don’t endeavor to repeat it here.
Suffice it to say that we agree that, absent a preliminary injunction, Plaintiffs
face a credible threat of civil or criminal prosecution for what is likely a lawful
activity and that Defendants have not offered more than unadorned,
conclusory assertions that FRTs are a threat to public safety.
II
Defendants request that, should we decide not to stay the preliminary
injunction in its entirety, we should at least stay the injunction as to the
associational Plaintiffs and as to the enforcement of the ATF’s definition
against the manufacture, distribution, and transfer of FRTs. We decline to
do so. The associational plaintiffs have standing to sue, and Defendants offer
no reason why we should engage in such indiscriminate line-drawing. And a
narrower preliminary injunction that protects just possession—not
manufacture, distribution, or transfer—ignores that Plaintiffs must be able to
acquire FRTs in order to use them.
III
Defendants have not carried their burden to show that they are
entitled to a stay pending appeal. Accordingly, their motion is DENIED.
