DOJ says Final Rule banning bump-stocks is not an abuse of discretion

By Heather Isringhausen Gvillo | Jun 5, 2019


Several government officials argue that a rule banning bump-stock devices is not an abuse of discretion in response to a class action seeking immunity for those who legally purchased the devices prior to the passing of the “Final Rule.”

“The Final Rule is supported by substantial evidence and is neither arbitrary, capricious, nor an abuse of discretion and, therefore, should be affirmed on the administrative record,” the defendants’ May 31 answer states.

Senior trial counsel Eric J. Soskin, an attorney with the Department of Justice, filed the answer on behalf of President Donald J. Trump, Attorney General William P. Barr and Regina Lombardo, Deputy Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Barr and Lombardo were substituted as defendants for Matthew Whitaker and Thomas E. Brandon. 

In his affirmative defenses, Soskin argues that the defendants’ actions do not violate the United States Constitution, the Fourth Amendment, the Fifth Amendment, the Administrative Procedure Act, or any other law. 

He also argues that the defendants’ actions and positions are justified within the meaning of the Equal Access to Justice Act. 

Thomas Maag of Maag Law Firm LLC in Wood River filed the lawsuit Jan. 2 on behalf of John Doe and all who are similarly situated. 

Maag alleges Doe filed the case under a pseudonym because he is afraid of being arrested and prosecuted “should his or her actual true name be known, due totally and exclusively to his prior lawful conduct and his continued possession of certain items that he previously lawfully acquired …”

The class action was filed in response to a rule adopted by the ATF in December 2018, retroactively redefining bump-fire stocks as machineguns under the National Firearms Act of 1934 and Gun Control Act of 1968. Until the new rule was published, the ATF had classified bump-stocks as firearm “parts.”

Bump-stocks attach to semiautomatic firearms in replace of the standard stock and speed up their firing rate, similar to that of an automatic weapon. They are notoriously associated with the mass shooting at a Las Vegas country music festival in October 2017. A gunman fired more than 1,000 rounds form his room on the 32nd floor of the Mandalay Bay Resort and Casino, killing 58 and injuring approximately 500 while using the device. 

Maag wrote the DOJ officially announced that anyone who possesses the devices must either destroy them or surrender them to the ATF without compensation within a 90-day period, which is considered ATF’s Final Rule. Court records indicate that the 90-day period began to run on March 26 when the Final Rule went into effect. 

Maag alleges the class would be irreparably harmed if the proposed regulations went into effect, “and thus, this court should enjoin same, pending a resolution on the merits, and/or remand to the administrative agency.”

According to the class action, Doe has been in possession of one or more bump-stock or bump firing devices since before Dec. 18, 2018. He alleges the devices were purchased or acquired in accordance with all applicable laws, rules, regulations and rulings in effect at the time they were purchased. 

The suit states that Doe seeks to lawfully register the devices in the National Firearms Registration and Transfer Record. If registration is legally impossible, then Doe seeks “just compensation under the Fifth Amendment, for a total regulatory and/or actual taking.”

The suit states that the Department of Justice reports that there are approximately 500,000 bump fire devices sold legally and currently in private civilian possession. They are worth approximately $200 and $500 each. 

“In truth and fact, there are likely as many as double that many, as the DOJ numbers do not [take] into consideration pre-2010 produced devices, which have been sold since at least the 1980s, or smaller custom manufacturers who copied the devices, all of which with either express ATF approval, or non-action by the ATF when made aware of same,” the suit states.

Maag wrote that the defendants do not have the authority to institute an amnesty registration period under the Gun Control Act of 1968. He asks the court to find that an amnesty registration period would provide an immunity for registered firearms. He also asks the court to find that “defendants have abused their discretion and acted arbitrarily and capriciously.”

Maag further seeks an injunction to enjoin enforcement of the rule for those who possessed a bump-stock “on or before December 18, 2019, and continue to retain possession of same.”

The defendants filed an opposition to Doe’s motion for preliminary injunction on April 17, arguing that the Final Rule “corrected a confusing and erroneous agency interpretation” of the statute prohibiting the manufacture, sale, and possession of new machine guns to the public, “to the expected benefit of public safety.”

They argue that Doe “cannot satisfy the high standards necessary for a preliminary injunction because he cannot demonstrate a likelihood of success on his claims nor that an injunction serves the public interest. Plaintiff’s motion should therefore be denied.”

The defendants also note that their opposition does not waive “their right to challenge plaintiff’s attempt to proceed under the pseudonym ‘John Doe.’”

They argue that federal court rules mandate that all civil actions be prosecuted under the party’s actual name. 

“A plaintiff’s use of a fictitious name ‘runs afoul of the public’s common law right of access to judicial proceedings,” the opposition states. 

“The Department of Justice’s classification of ‘bump-stocks’ as prohibited machine guns and plaintiff’s desire to continue to possess such unlawful weapons after the March 26, 2019, effective date of the rule challenged in this action does not constitute the type of ‘exceptional circumstances’ that ‘justify such a departure from the normal method of proceeding in federal courts,’” it continues. 

Before the defendants answered the complaint, Maag filed a motion for default on May 22.

He argued that it had been more than 60 days since the defendants were served with summons. While they had entered their appearance, the defendants had not filed an answer. 

“Counsel for plaintiff has seen similar cases, wherein the defendants simply never get around to filing an answer, which complicates the case,” the motion stated. 

The defendants filed a response on May 23, arguing that Maag’s motion was “both premature and unnecessary.” 

The response stated that the defendants were served the complaint on April 1 and had until May 31 to file an answer. 

“Defendants intend to answer or otherwise respond to the complaint on or before that date,” the response stated. 

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Maag Law Firm, LLC U.S. District Court for the Southern District of Illinois

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