ATF pistol brace rule lawsuits

Update to Mock v Garland at district court level - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-5#post-12816618

For the reasons set for the above and in Plaintiffs’ opening brief, the Court should grant Plaintiffs’ motion for summary judgment; vacate, in its entirety, the Final Rule and its amendment of 27 CFR §§ 478.11 and 479.11; and enter a permanent injunction against Defendants from enforcing their “interpretation” of federal law contained in the Final Rule against Plaintiffs.​

Great news!

FPC WIN: BIDEN/ATF “PISTOL BRACE” BAN VACATED - https://www.firearmspolicy.org/biden-atf-pistol-brace-ban-vacated

FORT WORTH, TX (June 13, 2024) – Today, Firearms Policy Coalition announced a major legal victory in its Mock v. Garland lawsuit challenging the Biden Administration’s “pistol brace” ban rule issued by the Bureau of Alcohol Tobacco, Firearms and Explosives (ATF). In the decision, United States District Court Judge Reed O’Connor granted summary judgment in favor of FPC and its co-plaintiffs and issued a final judgment and order vacating the ATF’s rule. The case and opinion can be found at FPCLegal.org.​
“The Biden Administration’s ATF hates us so much that it lawlessly acted to turn millions of gun owners into felons, but FPC and our members ran towards the fire and defeated this evil,” said FPC President Brandon Combs. “Today’s order shows that our community can take on an immoral government and win. FPC members should be proud of what was accomplished today. We look forward to defending this victory on appeal and up to the Supreme Court, just as we have in other cases.”​
Today’s victory is one in a line of FPC community successes against the Biden Administration. Indeed, the United States Supreme Court recently agreed to hear one of FPC’s cases in which it prevailed in the courts below.​
The plaintiffs are represented by attorneys Cody Wisniewski of FPC Action Foundation, Bradley Benbrook and Stephen Duvernay of the Benbrook Law Group, and R. Brent Cooper and Benjamin Passey of Cooper & Scully. Plaintiffs in this case are two individual FPC members, Maxim Defense, and FPC. FPC Action Foundation represented the Plaintiffs, alongside Benbrook Law. FPC expects the Mock decision and remedy to be appealed by the U.S. Department of Justice (DOJ).​

From the ruling - https://assets.nationbuilder.com/fi...8287457/2024.06.13_110_OPINION.pdf?1718287457

... the Court finds that the Final Rule violated the APA’s procedural requirements because it was not a logical outgrowth of the Proposed Rule. Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED ... (Page 6)​
Plaintiffs contend that the adoption of the Final Rule was arbitrary and capricious ... For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.” The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy. “When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’” “It would be arbitrary and capricious to ignore such matters” But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.​
Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles. The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.” In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA exempt braced pistol.” Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious ... (Page 8)​
Final Rule at 6480, would hold citizens criminally liable for the actions of others, who are likely unknown, unaffiliated, and uncontrollable by the person being regulated. None of those factors was included in the Proposed Rule.” ... This “monumental error” did not provide each Plaintiff with proper notice “that his [or her] firearm is subject to criminal penalties” or an opportunity to comment on the Final Rule. The Defendants’ decision to skirt notice-and-comment provisions is arbitrary and capricious ... the Supreme Court made clear in Perez, the public is not without recourse even if an agency attempts to ‘skirt’ the strictures of notice and comment with an interpretive rule.” (Page 9)​
Moreover, the Court finds that the standards set forth in the Final Rule are impermissibly vague. While the Worksheet in the Proposed Rule would allow “an individual to analyze his own weapon and gave each individual an objective basis to disagree with the ATF’s determinations, the Final Rule vests the ATF with complete discretion to use a subjective balancing test to weigh six opaque factors on an invisible scale.” ... Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED (Pages 9-10)​
Furthermore, the Supreme Court has encouraged lower courts to avoid expending “scarce judicial resources to resolve difficult and novel questions of statutory interpretation that will have no effect on the outcome of the case.” Because, as discussed above, the Court finds that Defendants’ adoption of the Final Rule violated the APA’s procedural requirements, and that those claims are dispositive, the Court declines to address the constitutional questions presented, as well as the question of whether Defendants exceeded their statutory authority in interpretating “rifle” under the NFA and GCA. (Page 10)​
CONCLUSION ... For the reasons set out above, the Court GRANTS Plaintiffs’ Motion for Summary Judgment on the grounds that the Final Rule violated the APA’s procedural requirements because it was arbitrary and capricious and was not a logical outgrowth of the Proposed Rule; DENIES Defendants’ Cross Motion for Summary Judgment; DENIES Plaintiffs’ request for a permanent injunction; and VACATES the Final Rule.​
SO ORDERED​
ETA: Explanation of the ruling by ex FPC attorney on post #132 - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-6#post-12920563
 
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So the pistol brace rule is dead? No exceptions? No appeals?
Not yet but looking pretty good.
FPC expects the Mock decision and remedy to be appealed by the U.S. Department of Justice (DOJ)

But in the meantime, today's ruling vacated/invalidated the Pistol Brace Rule so ATF cannot enforce the rule and we are also covered by nationwide preliminary injunction under Britto - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-4#post-12754989

And NRA preliminary injunction covers members with FRAC/25 states seeking preliminary injunction as well:
 
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So how many more courts will this have to go through before it is decided one way or the other?
One for the consolidate cases (That also includes Mock) which are already at the circuit court level then onto the Supreme Court where I believe we will prevail.

Two for NRA and FRAC/25 states cases which are at district court level.

Awesome, little wins become big wins.
Yes.
 
Adding to post #126 for Mock v Garland at district court level decision to vacate Pistol Brace Rule under APA violation - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-6#post-12920315

Ex FPC attorney Anthony Miranda discuss ruling.

HUGE WIN! ATF Stripped of Power to Enforce Short Barreled Rifle & Pistol Brace Rule Nationwide!
  • ATF pistol brace rule was struck down in its entirety and it was vacated nationwide
  • This ruling is first final merits decision coming out of Mock v Garland case
  • Case was filed and fought by FPC and this is a huge win as the entire rule was vacated which means it was found invalid and struck down in its entirety so the pistol brace rule as of right now is no more and has been vacated nationwide
  • There were preliminary injunctions which are temporary forms of relief protecting organizations like FPC/SAF/GOA and their members
  • In the Britto case, nationwide preliminary injunction protected everybody but temporary forms of relief
  • In this case, a final merits decision, which is huge, which means now this case will proceed forward, even if it goes to the 5th Circuit, it will proceed forward on a merits decision, ultimately leading the path back to the Supreme Court
  • Mock v Garland decision was issued by the amazing judge Reed O'Connor judge striking down the pistol brace rule, the Administrative Procedures Act was violated by the ATF
  • ATF had this whole worksheet, report card system where they had point systems that you would add up and that would help you determine maybe when a firearm with a brace attached to it would then be an SBR and not a pistol
  • Worksheet was in the proposed rule but then when we got the Final Rule, all of a sudden that worksheet was gone
  • When this case was moving through the process, what ended up happening is all the courts that reviewed this said that the ATF violated the APA because it did not follow the logical outgrowth
  • Because ATF scrapped the worksheet system and then went to a more arbitrary and capricious kind of intent-based analysis and this vague broad analysis where the ATF gets to determine on their own what would make something into SBR with a brace attached to it that violated the APA
  • When the preliminary injunctions were first reviewed, it was found to be a violation of the APA and now once again on the final merits decision they found that yes the ATF did violate the APA by not following the logical outgrowth test and therefore the entire brace rule must be vacated
  • Another thing that I want to note is that this lawsuit here is not a pure Second Amendment challenge so I know some people will say you know that the brace rule was struck down in its entirety because it was deemed unconstitutional or a violation of the Second Amendment. That's not necessarily true. There were some Second Amendment arguments that were made in this lawsuit but the courts never reached a decision and definitely not a final merit decision based purely on the Second Amendment.
  • It was more purely on the procedural aspect of the APA
  • ATF for a while in this lawsuit suddenly tried to argue that issuing an injunction, preliminary injunction or vacating the entire rule or doing some sort of relief would violate the AIA, essentially violate a tax requirement where you would be avoiding the tax paying the NFA. Judge O'Connor got around the AIA arguments saying the AIA only applies to injunctions and I'm not granting a permanent injunction in this decision. I'm granting a vacature of the entire rule which is different and that's why the AIA does not apply and that's why the whole NFA tax requirement is not applying in this case
  • He then goes on to say that this pistol brace rule here in this case is invalid and must be struck down in its entirety and must be vacated because again it violates the logical outgrowth test. Now really what judge O'Connor does here in this section and really in the entire decision is he just rejects all of the ATF's arguments that he shouldn't follow what the 5th Circuit did when they first reviewed Mock was on a more limited evidentiary record that the arguments weren't fully developed and therefore he shouldn't follow the whole logical outgrowth analysis.
  • He says no, the 5th Circuit when they first reviewed Mock did a thorough job they really looked at this issue and found that the ATF violated The logical outgrow test that they scrapped the worksheet, went to this more vague and arbitrary process and that violates the APA and therefore this must be shut down.
  • He states in this section that the court declines to re-litigat a determination made by the 5th Circuit in this case here the court declines the defendant's invitation to re-litigate this issue and once again adopts the majority's well-reasoned conclusion as its own. Consequently the court finds that the Final Rule violated the APA's procedural requirements because it was not a logical outgrowth of the proposed rule.
  • Accordingly, plaintiff's motion for summary judgment is granted and defendants motion for summary judgment is denied. As to the issue, now here is also something very important. Of course they're adopting what the 5th Circuit already said as far as a violation of the logical outgrowth but then there was a question about, okay what form of relief would judge O'Connor grant.
  • There were a few options he had mentioned that he could Grant a permanent injunction which is a little bit more drastic, essentially permanently barring the ATF from ever doing anything like this ever again or he could just simply vacate the rule and then remand it. You know for the ATF to do something again.
  • What ultimately happened here is that he vacated the entire rule so the rule is no more. It's found a violation of the APA but the ATF isn't necessarily barred from going back to the drawing board and trying to issue maybe a new proposed rule, a new Final Rule that is maybe consistent with the APA.
  • Again he's not addressing whether or not this type of rule would violate the Second Amendment or if it's just unconstitutional at large. Simply what he's saying here is that the ATF messed up the process again. A little bit less drastic of a decision but still it's vacating the entire pistol brace rule.
  • Now you may be asking yourself again how does this apply directly to you. This is a decision which impacts everybody in the United States. You know, the 10 to 20 million pistol brace owners. This impacts everybody, essentially this is a vacature of the entire rule so as of right now as we sit right now the pistol brace rule is no more.
  • The caveat with that is the fact that we already had some injunctions protecting people and then we also had the nationwide preliminary injunction in the Britto case so does the status quo really change drastically because of this? No not necessarily but this was still a major decision which is huge.
  • The other caveat to this is the fact that we all know that the ATF will appeal this up to the 5th Circuit and once again they will try their hand once
    again at the 5th Circuit. They will cry that the lower court here judge O'Connor got this analysis incorrect that he did the wrong thing and therefore the 5th Circuit should reverse.
  • Also in the meantime they're probably going to ask for an administrative stay of this ruling to put a halt on that nationwide vacature.
  • There's also a couple more additional wrinkles right now. The 5th Circuit has consolidated all the preliminary injunction reviews of these pistol brace cases the Mock case, the Britto case, the GOA case. All those cases are set to be heard around the August 15th date.
  • What's likely now going to happen because we have a final merits decision in the Mock case is some of those are also probably going to get moved around. Also keep in mind we have a ton of Supreme Court decisions dealing directly with the ATF with the bump stock ban that Cargill case, dealing with the Vanderstock case. All of those decisions are set to come.
  • But the general takeaway of this is that the pistol brace rule has been vacated in its entirety. That's a huge win. This is a final merit decision which is huge.

BREAKING 2A NEWS: ATF Stunning defeat in federal court ...
0:00 Major Breaking 2A News!​
2:37 2 Major ATF Mistakes​
3:59 Judge's Decision & Quote​
6:54 ATF is Emperor Nero & Felonies By Mistake...​
10:35 Thank You!​

Huge News: Down Goes ATF's Pistol Brace Rule

A Massive win today for gun owners everywhere. Washington Gun Law President, William Kirk, discusses the huge win today in the matter of Mock v. Garland, a now successful challenge to ATF’s Pistol Brace Rule which we have covered extensively here at WGL. This is a huge, huge win, but unfortunately, does not necessarily mark the end of this litigation.​
 
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...thanks to member live life on this thread. Always a pleasure👍 to read your compilations etc.

ALSO...thnx to any & all that donated $, joined any of the 2A organizations, called your elected Reps etc.

''Doing nothing got everybody no where, ACTIONS did.''
 
I would say LiveLife got me to join and donate to GOA and FPC.
Same here, joined and donated to FPC as the result of the final rule, which I basically stayed apprised of because of LiveLife putting it on my radar on a regular basis because of his threads. It's nice to see things laid out in plain speak and LiveLife puts a ton of time and work into keeping people as informed as possible IME. Thanks @LiveLife
 
I just had a miraculous experience! Back right after the pistol brace ban went into effect, I lost all my pistols with braces in a horrible boating accident in the Gulf of Mexico. I was so sad. Today I was walking on the beach, and discovered they all washed up on the beach. The braces were still on them and not a speck of rust!
 
I just had a miraculous experience! Back right after the pistol brace ban went into effect, I lost all my pistols with braces in a horrible boating accident in the Gulf of Mexico. I was so sad. Today I was walking on the beach, and discovered they all washed up on the beach. The braces were still on them and not a speck of rust!
What rust preventatives did you use? If you used a variety of rust preventatives and lubes, a write up of your real world experience would make a good sticky. It could settle the debate once and for all. 😉
 
Interesting update.

Supreme Court bump stock ruling is significant as first interpretation process that ruled ATF exceeded statutory authority.

Ruling can affect other ATF related cases by 28(j) letters to notify courts reviewing ATF related cases of new authority and that new authority is the Supreme Court's decision in the Cargill case where the Supreme Court ruled ATF overstepped their authority when it came to bump stocks so for similar ATF overreach cases, courts strike down ATF overreach action - https://www.thehighroad.org/index.php?threads/atf-bump-stock-lawsuits.921442/page-3#post-12923349

Moving forward, Cargill ruling will be cited in every single ATF case.
 
Update to Mock v Garland (ATF pistol brace ban) - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-6#post-12923364

FPC filed 28(j) letter to 5th Circuit three judge panel - https://assets.nationbuilder.com/firearmspolicycoalition/pages/6710/attachments/original/1719346889/2024.06.25_143_28(j)_Letter.pdf?1719346889

Re: Mock v. Bureau of Alcohol, Tobacco, Firearms, and Explosives​
Pursuant to Rule 28(j), Plaintiffs ... file this letter to inform the Court of the district court’s June 13, 2024 Memorandum Opinion and Order granting summary judgment in Plaintiffs’ favor, and its entry of Final Judgment ...​
The district court held that the Final Rule violated the Administrative Procedure Act’s procedural requirements because it was (1) not a logical outgrowth of the Proposed Rule; and (2) arbitrary and capricious. The district court entered judgment vacating the Final Rule. As a result, this preliminary injunction appeal is moot. (“Generally, an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter.” ... 5th Circuit 1984).​

Ex FPC attorney Anthony Miranda discuss filing of 28(j) letter regarding pistol brace rule and other ATF related cases:
  • ATF recently has ... suffered multiple losses in various cases including the Cargill bump stock case. Also lost at the lower court level ... engaged in business rule where a preliminary injunction was issued. Recent vacature of the entire pistol brace rule where final merits decision was issued by the lower court judge Reed O'Connor
  • FPC has filed a 28(j) supplemental letter, which is essentially a letter that you submit to a panel, saying that a new decision has come out that is going to impact this lawsuit
  • 5th Circuit three judge panel was set to hear the arguments on the preliminary injunctions not only the Mock case but other cases as well so there were some oral arguments and hearings set for August
  • Plaintiffs here are saying those reviews are essentially moot now because the lower court has issued a final merits decision which overrides what is now going on at the 5th Circuit level
  • The review that was set to take place in August deals with just preliminary injunctions but the plaintiffs here are saying we don't need to have those hearings because we have a final merits decision and unless ATF decides to appeal and seek review of that final merits decision, all these issues are moot and this case should be done
  • You may say well no doubt they're going to appeal that but ATF has suffered losses in the Supreme Court, at the 5th Circuit en banc panel level, at the three judge panel already in the Mock case so ATF has a very hard decision going forward. They can abandon this case, decide to just take their loss and go back to the drawing board. Maybe try to promulgate a new rule when it comes to pistol braces or they can roll the dice once again and seek a review from the three judge panel in the 5th Circuit of the final merits decision
  • As of right now the ATF has not appealed. They have 90 days, until September to file their appeal of that final merits decision so they still have time to file that appeal but we haven't seen anything issued. They haven't filed anything and that's because they've been suffering a ton of other losses
  • Plaintiffs essentially are not waiting for the ATF to make their move or to make up their mind; instead, they have filed a supplemental letter notifying three judge panel of the merits decision of Judge O'Connor that unless ATF decides to roll the dice once again, this issue is done and the pistol brace rule is dead
  • So now the ball is completely in the ATF's court on what they want to do but with the recent Cargill decision where the bump stock rule was struck down, with the recent Chevron Deference case, the pending VanderStok decision which is set for review during the Supreme Court's next term, all of that is impacting this case
  • In the ATF's current strategy, they don't have a lot of options. They're losing at every single level when it comes to their rules which I don't feel bad for them at all.
  • So right now their attorneys are probably scrambling to figure out what they actually want to do.
  • Now you may be asking okay where does this leave us all right now ... the pistol brace rule still has no impact on pretty much everyone nationwide. Not only do we have multiple limited preliminary injunctions that are technically still in place protecting organizational members of FPC, SAF and others; judge O'Connor issued a final merits decision striking down the entire brace rule and technically that is still in place, still in full force and unless ATF appeals (they have 90 days to appeal) and seek some sort of stay on that, as of right now pistol brace rule has no impact.
 
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How does all this affect folks in states with AW / magazine bans? I can not bring myself to believe that the SCOTUS is going to open the floodgates in states that control them. Then my state will just rewrite the law and start the clock all over again.
 
How does all this affect folks in states with AW / magazine bans? I can not bring myself to believe that the SCOTUS is going to open the floodgates in states that control them. Then my state will just rewrite the law and start the clock all over again.
Supreme Court in Heller and Caetano cases ruled that "modern" types of arms that did not exist at the time of founding were also protected by the Second Amendment and arms "in common use" could not be banned. And even justice Sotomayor wrote in Cargill bump stock case that semi-auto rifles are in common use.

Bruen ruling eliminated the two-step approach that many states are still referencing for their laws and Rahimi case was the test of Bruen methodology of using new "Text, history and tradition" approach with burden shifting to the states/government. Bruen test was reaffirmed in Rahimi ruling and justice Jackson conceded Bruen methodology was now "binding law" of the land (But some states are acting like they didn't get that memo yet 😉)

So in the same fashion of First Amendment protection expanding to "modern" forms of free speech like email/text, permanent enforcement against states defying Supreme Court rulings will come by the way of federal/state laws - https://en.wikipedia.org/wiki/List_...eme_Court_cases_involving_the_First_Amendment

BTW, Supreme Court recently ruled New York state's action was unconstitutional in First Amendment case of NRA v Vullo represented by ACLU - https://www.supremecourt.gov/opinions/23pdf/22-842_6kg7.pdf

States writing unconstitutional laws is not new. Since 1776, states have continued to write laws that defied the Constitution/Bill of Rights and Supreme Court kept ruling these laws unconstitutional and eventually, permanent enforcement was applied by federal/state laws.

Remember that many states didn't want to provide equal rights to freed slaves and allow women to vote? Well, what happened? Permanent enforcement was applied by federal/state laws and freed slave's vote counted equal instead of 3/5, use the same bathrooms and women were allowed to vote in 1920 (Yes, women's voting right was violated from 1776 to 1920 :oops: and gun owners feel our 2A rights have been violated way too long over several decades ;)).

And since the Second Amendment is not a "second class right", permanent enforcement will come by the way of federal/state laws as happened for all other amendments. If not, Supreme Court will keep ruling state laws that violate Second Amendment unconstitutional.

Believe me, majority mob rule wanting to impose on the rights of the minority is not new. And in 2024, gun owners are the latest minority group in need of protection by the Supreme Court.

So, can states write new laws banning women from voting in defiance to Supreme Court ruling and Bill of Rights?

No, because there's permanent enforcement in place by federal/state laws.

And same must happen for Second Amendment protection expanding to "modern" types of arms/accessories or the Second Amendment will become "second class right" and the Supreme Court will prevent that from happening.
 
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Update to Mock v Garland (ATF pistol brace ban) - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-6#post-12935623

Oral arguments scheduled for 8/5/24 after FPC filed 28(j) letter to 5th Circuit three judge panel - https://assets.nationbuilder.com/firearmspolicycoalition/pages/6710/attachments/original/1719346889/2024.06.25_143_28(j)_Letter.pdf?1719346889

The district court held that the Final Rule violated the Administrative Procedure Act’s procedural requirements because it was (1) not a logical outgrowth of the Proposed Rule; and (2) arbitrary and capricious. The district court entered judgment vacating the Final Rule.​
 
Update to Mock v Garland (ATF pistol brace ban) and other pistol brace ban cases - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-6#post-12939938

Moving forward, Cargill ruling will be cited in every single ATF case - https://www.thehighroad.org/index.p...ace-rule-lawsuits.920838/page-6#post-12923364

Ex FPC attorney Anthony Miranda discuss pistol brace cases:
  • With the vacature of the pistol brace rule by district court judge Reed O'Connor, ATF is no doubt scrambling to figure out what they actually want to do going forward
  • However, now some of the plaintiffs in the pistol brace cases are taking this opportunity with recent Supreme Court Cargill bump stock decision to try to expand on the pistol brace win and get this case thrown out and ultimately just win right here
  • One of the plaintiffs has filed a 28(j) supplemental letter to the 5th Circuit three judge panel that already was set to review the pistol brace case preliminary injunction that was issued by the lower courts. That review was set for the week of August 5th
  • The letter notified that panel merits decision was issued by judge O'Connor and struck down the rule in its entirety on a motion for summary judgment
  • That letter states to the three judge panel that their review is no longer needed on that whole preliminary injunction issue, they don't need to have that hearing anymore, and that issue is now moot and essentially should be removed.
  • And instead, all that's left to be done is for the ATF to decide if they are going to appeal that lower court's final merits decision up to the 5th Circuit
  • However, interestingly the state of Texas who I believe is another plaintiff in a different pistol brace case has filed an additional letter to the three judge panel and they're asking for additional argument times when that August 5th hearing happens
  • So you have two plaintiffs arguing different things. One is saying the whole injunction hearing right now is moot, doesn't need to happen and then you have this state of Texas saying they want the hearing, potentially to move forward and they want additional time
  • You may recall that ATF recently decided to roll the dice on the appeal of the pistol brace cases specifically to the 5th Circuit on the preliminary injunctions. Those appeals include the Mock v Garland FPC case, the Britto v Garland case and then a bunch of other cases that dealt with preliminary injunctions (which are just temporary forms of relief) and all those cases were consolidated at the 5th Circuit
  • Although ATF has already lost once in the 5th Circuit, specifically in the Mock case, ATF decided that the lesser of evils to them was to appeal those preliminary injunctions and hope that the 5th Circuit ruled in their favor
  • ATF argued that despite what the 5th Circuit said originally in Mock case, all the lower courts were wrong to follow that ruling. They also doubled down saying that the relief granted by the lower courts in all these different cases including the Britto nationwide injunction that they were too broad and therefore they also must be struck down by the 5th Circuit
  • If you're not aware, recently you had Britto v ATF case and in that case you had the lower court judge Matthew Kacsmaryk who issued a preliminary injunction which blocked the brace rule in its entirety on a nationwide block of the brace rule
  • Now judge Kacsmaryk in his decision essentially springboarded off of a recent decision by judge Reed O'Connor in that Mock v Garland case and then also he used what the 5th Circuit also said in that Mock case
  • Lke I mentioned, ATF decided to appeal all those decisions up to the 5th Circuit
  • 5th Circuit consolidated all those cases and was going to have a large hearing on the week of August 5th on all these cases which dealt with preliminary injunctions
  • While all this was happening, there was an even more important process that was going on which was that the lower court judge O'Connor was moving the Mock case towards a final merits decision
  • Both parties filed motions for summary judgments (which are just simply motions to try to dismiss and resolve the case before going to a full hearing)
  • In his decision, judge O'Connor stated that at the conclusion of the majority's careful analysis, they held that the final rule is properly characterized as a legislative rule and it is relatively straightforward that the final rule was not a logical outgrowth of the proposed rule. Therefore, the final rule must be set aside as unlawful or otherwise remanded for appropriate remediation
  • Here the court declines the defendant's invitation to relitigate this issue and once again adopts the majority's well reasoned conclusion as its own
  • Consequently, the court finds that the final rule violated the APA's procedural requirements because it was not a logical outgrowth of the proposed rule
  • Now one of the main issues that judge O'Connor and a lot o these courts are finding specifically with the pistol braces case is the fact that when ATF first issued their notice of proposed rule making and had their first proposed rule, there was something known as the worksheet 4999
  • That worksheet was essentially kind of like a report card where there was a point system where you would look at these standards on this report card and you would look at your specific firearm and how it was configured. And if it had maybe a certain brace attached to it or it was a certain length or weight, you would add points. And if you got to a certain point threshold, well then all of a sudden the ATF said under this standard that would then be an SBR subject to the NFA and ATF's regulations and restrictions
  • So they had a report card system initially in the proposed rule which we all commented against and we reacted to but with the Final Rule, what the ATF decided to do was completely scrap that worksheet and then they went to a more arbitrary, just vague standard which had some of the characteristics and some of the you know factors that were included in the worksheet but the worksheet was completely done away with
  • And then there was a bunch of catchall language that said that essentially at the ATF discretion, they could determine what types of braced pistols or other types of firearms configured in certain ways would then be SBR kind of not leaving any guidance at all and then also deviating very drastically from the proposed rule to the Final Rule
  • That's what the courts are finding issues with and ultimately judge O'Connor in his decision found that was invalid. It violated the APA and that's why the rule was struck down in its entirety
  • That decision essentially overrides the preliminary injunctions that are currently in place but also right now, ATF still has time to appeal. They have at least until 90 days which I believe is September 11th to file their appeal to the 5th Circuit but we haven't seen that happen yet
  • But also with the recent Supreme Court 6-3 decision in the Cargill case, it's very hard for the ATF to try to argue that these types of rules in this process are valid so I think they're taking some time to decide what they're going to do
  • One of the plaintiffs in this lawsuit is not taking their time. They're not waiting for the ATF to make up their mind instead they filed a supplemental letter to the three judge panel in the 5th Circuit notifying them of judge O'Connor's decision and telling them essentially that the preliminary injunction hearings and reviews which were set for August are now moot because you have a final merits decision
  • However it doesn't seem that maybe all the plaintiffs are on board with saying that the preliminary injunction is now moot, that hearing is moot in August
  • You had this state of Texas who is one of the plaintiffs in the lawsuits who moved for a 10-minute additional time when it comes to the preliminary injunction hearing. Ultimately, it's going to be up to the 5th Circuit three judge panel to decide if they're going to moo those hearings in August and essentially just wait for the ATF to make their move and decide if they're going to appeal that final merits decision in the Mock v Garland case
  • I would say that the ATF of course is going to appeal that merits decision up to the 5th Circuit and that's one of the big ones that we're going to be watching
 
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