The Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)’s Final Rule on Stabilizing Braces suffered another setback yesterday as a judge found that it violates the Federal Administrative Procedure Act (APA). Federal District Judge Matthew J. Kacsmaryk granted a preliminary injunction against the rule, staying it “in its entirety.” That last part is important, as it applies injunctive relief nationwide, unlike the previous injunction in the case of Mock v. Garland.
Mock v. Garland
Mock v. Garland is an ongoing challenge to the pistol brace rule, in which Federal District Judge Reed O’Connor declared the rule unconstitutional. The ATF appealed to the 5th Circuit Court of Appeals, which clarified O’Connor’s ruling but limited the finding to an APA violation.
The 5th Circuit remanded the case back to Judge O’Connor, instructing him to rule according to the appellate court’s finding. O’Connor did so, issuing a preliminary injunction against the rule. However, the injunction was limited to the plaintiffs, their families, and their employees. It also applied to the Firearms Policy Coalition (FPC) and its members as FPC brought the case on behalf of the plaintiffs.
Britto v. ATF
This most recent decision is part of Britto v. ATF, and it cites the 5th Circuit’s finding in Mock v. Garland. After a short discussion of the National Firearms Act (NFA), as it applies to short-barreled rifles (SBRs), Judge Kacsmaryk examines stabilizing braces and their purpose. He also lists the plaintiff’s challenges, which assert that the Final Rule:
- “Violates the Second Amendment;”
- “Violates separation of powers and nondelegation principles;”
- “Conflicts with the NFA’s definition of ‘rifle;’”
- “Is arbitrary and capricious under the Administrative Procedure Act (APA);”
- “Is void for vagueness.”
The plaintiffs therefore asked the court to enjoin the ATF from enforcing the Final Rule.
The issuance of a preliminary injunction hinges on the plaintiff satisfying four requirements:
- A substantial likelihood of success on their case’s merits.
- A substantial threat of irreparable harm if the injunction is not issued.
- That the threatened injury outweighs any harm that will result if the injunction is granted.
- That the grant of an injunction serves the public interest.
Judge Kacsmaryk examines the plaintiffs’ claims in that context.
The Case’s Merits
Kacsmaryk begins by stating that the APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
He referred to the 5th Circuit’s ruling in Mock v. Garland, which stated that the Final Rule “was not a logical outgrowth of the Proposed Rule,” which violates the APA. Furthermore, the 5th Circuit ruled that “the monumental error was prejudicial,” meaning the ATF deliberately violated the APA, and that the Rule “must be set aside as unlawful.” The judge then notes that the 5th Circuit remanded the case back to Judge O’Connor, saying that they placed “no limitation on the matters that [the court] may address on remand,” and provided “no indication of what decisions it should reach, regarding a preliminary injunction or any other matter.”
Judge O’Connor not only ruled on the APA violation but also that the plaintiffs were likely to succeed because “the braced pistols subject to enforcement of the Final Rule are in common use today,” and that “possession and use of braced pistols is therefore within the ambit of Second Amendment protection.” As we noted above, Judge O’Connor issued a preliminary injunction but limited it to those involved in the case.
Judge Kacsmaryk echoes O’Connor’s ruling, stating that the APA violation alone indicates probable success on the merits of the case. In that light, he declines to further examine Constitutional questions, which is standard procedure when matters such as the APA can decide a case.
“Perhaps the single most important prerequisite for the issuance of a preliminary injunction,” Kacsmaryk writes, “is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” The judge then discusses the plaintiffs, three Marines, and their reasons for using braced pistols. He then looks at methods of complying with the Final Rule, concluding that each one would cost time and money that could not be recouped because of the ATF’s sovereign immunity to damage claims. The standard for irreparable harm is therefore met.
The Public Interest
“The third and fourth factors,” Judge Kacmaryk asserts, “assessing the harm to the opposing party and weighing the public interest – ‘merge when the Government is the opposing party.’” He continues, writing that “there is generally no public interest in the perpetuation of unlawful agency action.”
Kacsmaryk concludes that “this factor supports injunctive relief. As explained in Garland, ‘[t]he controlling law of this case is that the Government Defendants’ promulgation of the Final Rule “fails the logical-outgrowth test and violates the APA” and “therefore must be set aside as unlawful.”’ ‘It follows, then, that there is no injury that the Government Defendants or public-at-large could suffer from if enforcement of the Final Rule were enjoined.’”
A Bone to the Government
Judge Kacsmaryk does throw the ATF a bone, stating that, “The Court is not insensitive to ATF’s concerns over gun-industry gamesmanship and attempts to circumvent the NFA’s restrictions on SBRs. However, ‘the government may not simply posit that the regulation promotes an important interest’ to justify its regulation.” That means the feds can’t just make up a rule because they want to or think it’s a good idea.
“Likewise,” the judge continues, “the Court is certainly sympathetic to ATF’s concerns over public safety in the wake of tragic mass shootings… But public safety concerns must be addressed in ways that are lawful. This Rule is not.” He then orders the Final Rule to be stayed “in its entirety,” meaning it covers everyone.
The entire case will now be heard before Judge Kacsmaryk. It looks like he will find it in the plaintiffs’ favor. That isn’t guaranteed, but he wouldn’t have issued the preliminary injunction if things didn’t look good.
My initial thought was that ATF would appeal to the 5th Circuit, and they still may. But Judge Kacsmaryk based his decision on the 5th Circuit’s previous finding in Mock v. Garland, so any appeal seems unlikely to succeed. The only possible positive outcome for the ATF that I can see is that the 5th Circuit might say the injunction is too broad. But their declining to place limits on Judge O’Connor’s finding might seem to preclude that. But courts do strange things sometimes, so we’ll have to see.
I think the most likely course is that ATF will wait for the final adjudication of this case and Mock v. Garland. Assuming those cases go against them, they will likely appeal one or both decisions to the 5th Circuit, and we’ll take the next step.
Things look good right now. I’ve seen pro-gun media figures claiming that the pistol brace rule is dead, among other things. That’s probably premature. This is, after all, only a preliminary injunction. Both Mock and Britto still must be heard and decided upon. That takes time, but I am optimistic. Then the appeals process begins since we know whoever loses will certainly appeal. This is a good first step, but it ain’t over ‘til it’s over. The good news right now is that ATF cannot enforce the Final Rule. We’ll see where it goes from here.