WILLIAM J. OLSON, P.C. ATTORNEYS AT LAW

Transcription

1 Case: Document: 14 Filed: 03/21/2019 Page: 1 WILLIAM J. OLSON (VA, D.C.) HERBERT W. TITUS (VA OF COUNSEL) JEREMIAH L. MORGAN (D.C., CA ONLY) ROBERT J. OLSON (VA, D.C.) WILLIAM J. OLSON, P.C. ATTORNEYS AT LAW 370 MAPLE AVENUE WEST, SUITE 4 VIENNA, VIRGINIA TELEPHONE (703) FAX (703) wjo@mindspring.com CREEKSIDE LANE W INCHESTER, VA TELEPHONE (540) FAX (540) March 21, 2019 Ms. Deborah S. Hunt Clerk, United States Court of Appeals for e Six Circuit 540 Potter Stewart U.S. Courouse 100 E. Fif Street Cincinnati, Ohio Re: In re Gun Owners of America, Inc., et al., No Dear Ms. Hunt: Petitioners Gun Owners of America, Inc., et al., hereby submit additional information to e Court regarding e filing at was made in is case in e district court on e evening of March 19 and 20, The summary nature of Petitioners communication is dictated by ese unique circumstances. Today, at 5:37 PM EST, e district court for e Western District of Michigan filed an Opinion and Order Denying Plaintiffs Motion for a Preliminary Injunction. Docket No. 18-cv-1429, ECF # 48. Pending before is Court is Petitioners Emergency Petition for a Writ of Mandamus and Motion for a Stay of Agency Action, filed is past Tuesday, March 19, 2019, which sought two separate forms of relief from is Court. Early is evening, e district court issued its order denying Petitioners relief below, ereby mooting eir petition for writ of mandamus. However, Petitioners motion for stay pending appeal, pursuant to FRAP 8, has now been briefed by bo parties, and remains pending before is Court for consideration. Petitioners will be promptly filing and perfecting eir appeal from e district court s order but, due to time constraints imposed by e district court s late opinion and order, respectfully request at, in e interim, is Court consider Plaintiff-Appellants pending Rule 8 motion.

2 Case: Document: 14 Filed: 03/21/2019 Page: 2 2 Practically speaking, ere is no time to do oerwise. At is, e eleven hour two business days before e final rule is to take effect Petitioners are unable to properly and fully prepare a brief challenging e district court s decision below. Petitioners have no time to order an appeal transcript of oral argument from e district court, to be used in support of a brief. There is not even time to ask e district court to voluntarily stay its order pending appeal. The district court has foreclosed e luxury of time, leaving Petitioners wi no time to do much of anying to e prejudice not only of Petitioners, but also is Court, which should have e opportunity to properly hear is case wiout e unfair constraints at have been imposed. 1 As explained below and in eir Tuesday filing, Petitioners have raised significant questions of law and fact at are undoubtedly serious enough to warrant a stay of agency action in is case until is Court has properly heard Petitioners appeal. In fact, e district court below expressly found Petitioners reading of e statute to be bo reasonable, and supported by case law. ECF #48 at The District Court Erred in Finding e Statute Ambiguous. As Petitioners have noted, bo parties have repeatedly declared e statutory text to be unambiguous. Petition at 11. The district court, however, disagreed wi bo parties, finding at e statutory terms are ambiguous. ECF #48 at 1. First, e district court found at e word automatically... is ambiguous as to wheer e word automatically precludes any and all application of non-trigger, manual forces in order for multiple shots to occur. Id. at (emphasis added). But e issue is not wheer e word 2 1 Earlier today, anoer U.S. Court of Appeals granted a stay of e final rule, for e purpose of giving e court adequate time to properly consider e motion, however crafted e stay to apply only to e Plaintiff in at case. Aposhian v. Barr, (10 Cir.). 2 The Court correctly frames e issue as wheer e forward pressure exerted by e shooter using e non-trigger hand requires e conclusion at a bump stock does not shoot automatically. ECF # 48 at 12.

3 Case: Document: 14 Filed: 03/21/2019 Page: 3 3 automatically might be ambiguous when extracted from e statute in is way. Fortunately, Congress used many words to define a machinegun. Indeed, at is how individual words togeer gain unambiguous meaning. As Justice Cardozo once explained, e meaning of a statute is to be looked for, not in any single section [or word], but in all e parts togeer... Panama Ref. Co. v. Ryan, 293 U.S. 388, 439 (1935) (Cardozo, J., dissenting). As Petitioners have argued, e statutory context makes clear precisely how much human input is permitted while still rendering a firearm a machinegun automatically... by a single function of e trigger. Petition at 12. The district court correctly recognized at bump stocks require more human input an a single function of e trigger (ECF #48 at 13), yet its atextual analysis of automatically reads at limitation out of e statute. Contrary to e district court s conclusion below, it is not up to agencies to decide what automatically means in e statute, and it is error for courts to defer to em. Second, e district court found ambigu[ity] wi respect to e phrase single function of e trigger. ECF # 48 at 13. The court concluded at [t]he statute does not make clear wheer function refers to e trigger as a mechanical device [as Petitioners argued] or wheer function refers to e impetus for action at ensues [as e government argued]. Bo interpretations are reasonable. ECF #38 at (emphasis added). The district court looked to legal precedents and dictionary definitions in an attempt to decide. Id. at 14. However, it does not appear at e court began wi e statute itself. Clearly and unambiguously, function of e trigger refers to e mechanical process rough which e trigger goes and, while it is depressed, activates repeated shots automatically. It certainly does not refer to e biological process of setting a mechanical process into motion. The court erred by failing to consider e statute on its own. Most importantly, however, e district court never concludes at much less explains how a bump stock fires even by a 3 single pull of e trigger. As Petitioners have explained, e trigger is bo functioned and pulled separately, each time a shot is bump fired. The district court offers no way around is reality. 3 Petitioners made additional arguments at e district court did not address, yet are fatal to e government s case. Many are briefly summarized in eir Motion filed Tuesday.

4 Case: Document: 14 Filed: 03/21/2019 Page: 4 4 Finally, at oral argument on March 6, 2019, e district court asked e government about Petitioners assertion at, if a previously-unambiguous statute is now declared ambiguous, it must be declared void for vagueness. The court queried as to e implications for criminal prosecutions at previously have relied on an unambiguous criminal statute. Yet e district court does not wrestle wi ose serious issues here. Thus, is Court must carefully consider e ramifications of a declaration at a criminal statute is suddenly ambiguous, after 85 years of being unambiguous. Indeed, for decades, courts consistently concluded at e statute was unambiguous. See, e.g., U.S. v. Williams, 364 F.3d 556, 558 (4 Cir. 2004); U.S. v. TRW Rifle 7.62x51mm Caliber, One model 14 Serial , 447 F.3d 686, 689 n. 4 (9 Cir. 2006); U.S. v. Olofson, 563 F.3d 652, 660 (7 Cir. 2009); U.S. v. Fleischli, 305 F.3d 643, 655 (7 Cir. 2002). Suddenly now, our separate and jealously independent ird branch of government is consistently concluding at e statute is ambiguous. ECF # 48; Guedes v. ATF, 18-cv-2988 (D.D.C.); Codrea v. ATF, 18-cv-3086; Aposhian v. Barr, 19- cv-37 (D.Utah) (e Utah court does not explicitly find e statute ambiguous, but nevereless permits e government to interpret undefined statutory terms, someing at would be entirely unnecessary if e statute were unambiguous). In e future, when oerwise-law-abiding bump stock owners inevitably are prosecuted for possession of unregistered machineguns, will e courts flip back, and conclude at e statute is again unambiguous? 2. The District Court Erred in Deferring to e Government Under Chevron. In e two related D.C. bump stock cases (currently pending in e circuit court), Judge Friedrich issued an opinion on February 25, 2019, which began and ended wi Chevron deference. ECF # 22 in 18-cv-3086-DLF (D.D.C.) Ignoring e fact at e government had never asked for Chevron deference in its interpretation of is criminal statute, e D.C. court nevereless found ATF entitled to it. Recognizing e manifest error in e D.C. opinion, e government immediately filed a Notice of Supplemental Auority in e district court below.

5 Case: Document: 14 Filed: 03/21/2019 Page: 5 ECF # 38. In it, e government expressly disclaimed Chevron deference, and argued at e ATF is not entitled to any deference in is matter. Id. at 2. Ignoring e government s pleas not to base its opinion on Chevron deference, e district court below doubled down, claiming at [w]hile e parties might like to avoid Chevron... is Court cannot. ECF 48 at 10. Rejecting Petitioners argument at it is e duty of e court not e agency to determine e meaning of e statute and ereby to say what e law is, e district court deferred entirely to e agency, even ough it admitted Petitioners understanding of e statute is bo reasonable and supported by case law. Id. at Petitioners have raised a serious question wheer Chevron deference indeed, deference of any kind applies here. If is Court were to conclude it does not, en e district court s opinion is a nullity. That is a matter is Court should address before more an a half million bump stocks are ordered destroyed. 3. The District Court Ratified ATF s Factual Errors. Ironically, e district court states at, [t]o appreciate how e new interpretation of e definition of machine gun implicates bump-stock devices, one must understand how e device works. ECF # 48 at 7. Yet e court immediately makes clear at it does not understand how bump stocks operate. The court adequately describes what a bump stock is, but not how it works. The court claims at a bump stock... harnesses e rearward recoil energy from e shot causing e weapon to slide back... Id. (emphasis added). Not only is is untrue, it doesn t make any sense. Recoil is explained by physics Newton s Third Law of Motion. When a round is fired from a rifle, e rifle slides back into e bump stock all on its own not because e bump stock harnesses e energy or serves any function at all in e process, but simply because at s e direction recoil (and us e rifle) moves. The district court also adopts e government s assertion at a bump stock somehow initiat[es] [a] firing sequence as if is sequence is automatic and wiout additional shooter input. Id. at 7. Yet as Petitioners have explained, bump fire wi or wiout a bump stock is noing more an rapidly-

6 Case: Document: 14 Filed: 03/21/2019 Page: 6 occurring, semi-automatic fire, at requires constant and varying degrees of human input in order to continue. Bump fire is a technique at depends on human skill and practice not on e presence or absence of a plastic stock. 6 CONCLUSION The government cannot interpret a statute unless e statute is ambiguous. The government never argued at e statute was ambiguous here, yet e district court jumped to e rescue, declaring e statutory definition unclear. Likewise, e government s tortured and atextual understanding of e statutory terms cannot prevail unless significant deference is afforded e agency. The government argued it should receive no deference, but once again e district court stood ready to defer completely to e agency. Finally, e government s case must fail unless it is permitted to twist e facts, because e operation of bump stocks (properly understood) do not fit even wi e regulatory definitions ATF has promulgated. For e reasons above (and oers ere is simply no time to brief), e district court s opinion below is in clear error, bo factually and legally, and is furer weighs in favor of e granting of a stay, so at e Court has e time to properly consider Petitioners appeal. KERRY L. MORGAN Respectfully submitted, /s/ Robert J. Olson ROBERT J. OLSON* PENTIUK, COUVREUR & KOBILJAK, P.C. WILLIAM J. OLSON 2915 Biddle Avenue, Suite 200 JEREMIAH L. MORGAN Wyandotte, Michigan HERBERT W. TITUS (734) WILLIAM J. OLSON, P.C. 370 Maple Avenue W., Suite 4 Vienna, Virginia (703) Counsel for Petitioners *Attorney of Record

7 Case: Document: 14 Filed: 03/21/2019 Page: 7 7 CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED at service of e foregoing letter, was made, is 21st day of March 2019, by e Court s Case Management/Electronic Case Files system upon all parties or eir counsel of record. /s/ Robert J. Olson Robert J. Olson Counsel for Appellants