VanDerStok v Garland - ATF definition of unfinished firearms

[Flynn]

This case is just starting but it's turning out to be quite interesting even at the preliminary injuction stage.

 

Quote

To be sure, ATF is entitled to deference on its expertise in determining whether a particular component is a frame or receiver. There are no doubt close calls, as illustrated by the samples Tactical Machining has sent to ATF over the years.19 But this case does not require the Court to determine how much machining is necessary to transform a component into a frame or receiver— that determination lies with ATF. Rather, the issue here is whether ATF may still regulate a component as a “frame or receiver” even after ATF determines that the component in question is not a frame or receiver at the time of evaluation. Congress has not extended ATF’s authority so far. That the firearm part is “designed” to be or may one day become a frame or receiver does not change the fact that, in that moment, it is not “the frame or receiver of any such weapon.” 18 U.S.C. § 921(a)(3)(B).

 

https://assets.nationbuilder.com/firearmspolicycoalition/pages/6573/attachments/original/1662145028/VanDerStok_v_Garland_Order_on_MPI.pdf?1662145028

https://www.firearmspolicy.org/vanderstok

[Euler]

The case is filed in the Federal District Court of North Texas.

 

The original injunction created an odd situation where Tactical Machining could sell unfinished receivers, but no one could buy them, and anyone who already had any would still be in violation of the "final rule."

 

On October 1, the judge expanded the preliminary injunction to fix that.

 

Docket

October 1 Order said:

On September 2, 2022, this Court issued an Opinion and Order on Preliminary Injunction ... granting in part Plaintiffs' earlier request for interlocutory relief.

...

In its prior opinion, this Court found that provisions of ATF's Final Rule -- specifically, 27 C.F.R. §§ 478.11, 478.12(c) -- likely exceed the scope of ATF's authority under the Gun Control Act. Having made this preliminary finding, the Court enjoined Defendants ... from implementing or enforcing the rule against only Tactical Machining.

...

Plaintiffs now seek to expand the scope of the injunction to cover Individual Plaintiffs, FPC as an organization, and FPC's members.

...

Accordingly, the Court GRANTS Plaintiffs' motion in part, DENIES the motion in part, and ORDERS that Defendants and their officers, agents, servants, and employees are enjoined from implementing or enforcing against (1) Individual Plaintiffs, Jennifer VanDerStok, and Michael G. Andren, and (2) Tactical Machining, LLC and its "customers," defined above, the provisions in 27 C.F.R. § 478.11 and 478.12 that this Court has determined are likely unlawful. ...

 

On October 3, the judge clarified that "customers of Tactical Machining, LLC" against whom the "final rule" cannot be enforced does not include people federally prohibited from possessing firearms. So prohibited possessors still cannot possess unfinished receivers (for now).

 

Edited October 4, 2022 at 05:43 AM by Euler

[Euler]

On October 5, the plaintiffs filed an amended complaint.

 

The original complaint (and amended complaint) include statements about:

1. historical background,
2. legal background,
3. ATF's redefinition of "firearm," and
4. ATF's other APA (Administrative Procedure Act of 1946) violations.

The amended complaint adds a statement that:

5. the "final rule" violates the First Amendment, because it includes a prohibition on the distribution of information regarding unfinished firearms parts.

 

The original complaint (and amended complaint) include claims for relief from the ATF rule, because it:

1. violates APA - exceeds its statutory jurisdiction and authority,
2. violates APA - fails to observe procedures required by law,
3. violates APA - is arbitrary, capricious, and not in accordance with law,
4. violates Constitution Article I - separation of powers & the delegation doctrine,
5. violates Constitution Article II - the take care clause, and
6. violates Constitution 5^th Amendment - void for vagueness.

The amended complaint adds a claim for relief from the ATF rule, because it:

7. violates Constitution 1^st Amendment - free speech.

[Flynn]

This case is fast turning out to be a very viable case for Supreme Court to review.

[Euler]

Hmm...

 

CourtListener seems to have suffered some database corruption, or maybe PACER did. This case has been somehow conflated with something captioned Brown v Department of Education.

[Euler]

On 10/10/2022 at 10:29 PM, Euler said:

Hmm...

 

CourtListener seems to have suffered some database corruption, or maybe PACER did. This case has been somehow conflated with something captioned Brown v Department of Education.

 

Now it seems to have become conflated with US Navy SEALs 1-26 v Biden. (Let the conspiracy theories commence....)

[Euler]

The corruption in CourtListener's copy of the docket has been cleaned up.

 

Meanwhile, BlackHawk Manufacturing (dba 80 Percent Arms) filed a motion to join the lawsuit as a plaintiff back in September, saying that its interests aligned with those of Tactical Machining, but that there is some effect of the case that did not cover all of BlackHawk's interests and might even harm them.

 

The ATF objected, saying that BlackHawk should bring its own, separate lawsuit.

 

Tactical Machining (and the other plaintiffs) did not object.

 

The judge today granted the motion. BlackHawk Manufacturing is now a plaintiff along with VanDerStok, Andren, Tactical Machining, and FPC.

[Flynn]

The more this case progresses the more I see it as another possible landmark case before it's over.  So many good questioned raised over and above just 2nd issues.

[Euler]

On October 25, the judge decided to consolidate the hearing on BlackHawk's motion for a preliminary injunction with a trial limited to the first count of each of Tactical Machining and BlackHawk Manufacturing's complaints, i.e., that the ATF "final rule" exceeds ATF's statutory authority. The date for the trial won't be decided until sometime after November 14.

 

Edited October 26, 2022 at 05:35 PM by Euler

[Euler]

On November 1, ATF/Garland filed an appeal to the 5th Circuit on the injunction protecting Tactical Machining. On November 3, the 5th Circuit assigned the appeal case number 22-11071. (It's worth remembering that preliminary injunctions are granted -- or denied -- based on who the judge thinks is going to win the lawsuit eventually.)

 

On November 2, Defense Distributed and SAF filed a motion to intervene as additional plaintiffs.

 

On November 3, the court granted a preliminary injunction protecting BlackHawk Manufacturing. (The combined limited trial and hearing that the judge wanted has not yet taken place. I think the judge is pissed at the ATF for appealing the first preliminary injunction.)

 

If the motion to intervene is granted, plaintiffs will be FPC, SAF, Tactical Machining, BlackHawk Manufacturing, Defense Distributed, and individuals Jennifer VanDerStok and Michael Andren. That's three separate sets of independent plaintiffs, and the appeals are already flying. It's going to be a circus.

[Flynn]

On 11/4/2022 at 8:54 PM, Euler said:

That's three separate sets of independent plaintiffs, and the appeals are already flying. It's going to be a circus.

 

And I hope that in the end it ads more precedent to the Bruen ruling, it's going to be huge either way at this point.

 

I do wonder if the 5th denies the appeal if the ATF will back off vs going for broke as I really can't see them prevailing under the Bruen test (It's pretty evident the lower court sees the writing on the wall) and the precedent this could set is huge, especially if the ATF pushes it up the ladder to what most will agree is a perturbed Supreme Court in regards to what is an infringment of the 2nd and what isn't.

[mab22]

On 11/4/2022 at 9:35 PM, Flynn said:

 

And I hope that in the end it ads more precedent to the Bruen ruling, it's going to be huge either way at this point.

 

I do wonder if the 5th denies the appeal if the ATF will back off vs going for broke as I really can't see them prevailing under the Bruen test (It's pretty evident the lower court sees the writing on the wall) and the precedent this could set is huge, especially if the ATF pushes it up the ladder to what most will agree is a perturbed Supreme Court in regards to what is an infringment of the 2nd and what isn't.

Think about the current administration, do you think they want to go for broke to make this as painful as possible for the plaintiffs?

[Euler]

On 11/7/2022 at 10:29 PM, mab22 said:

Think about the current administration, do you think they want to go for broke to make this as painful as possible for the plaintiffs?

 

If the ATF can arbitrarily redefine what a firearm is, it can do anything. Neither side can afford to lose. Pain isn't really an issue.

[mab22]

On 11/7/2022 at 10:27 PM, Euler said:

 

If the ATF can arbitrarily redefine what a firearm is, it can do anything. Neither side can afford to lose. Pain isn't really an issue.

Agree except on pain isn’t an issue, with the progressives the pain in the punishment, just look at how the DOJ,FBI has ben behaving. They know they will loose in the long run, but only if you will deal with the pain. Not everyone can afford and endure the pain of the process and they just accept it and give up.
 

[Euler]

On 11/4/2022 at 9:54 PM, Euler said:

On November 1, ATF/Garland filed an appeal to the 5th Circuit on the injunction protecting Tactical Machining. On November 3, the 5th Circuit assigned the appeal case number 22-11071. (It's worth remembering that preliminary injunctions are granted -- or denied -- based on who the judge thinks is going to win the lawsuit eventually.)

...

On November 3, the court granted a preliminary injunction protecting BlackHawk Manufacturing. (The combined limited trial and hearing that the judge wanted has not yet taken place. I think the judge is pissed at the ATF for appealing the first preliminary injunction.)

...

 

On November 3, ATF/Garland filed an appeal to the 5th Circuit on the injunction protecting BlackHawk Manufacturing. On November 10, the 5th Circuit assigned the appeal case number 22-11086.

[Euler]

On 11/4/2022 at 9:54 PM, Euler said:

On November 1, ATF/Garland filed an appeal to the 5th Circuit on the injunction protecting Tactical Machining. On November 3, the 5th Circuit assigned the appeal case number 22-11071. (It's worth remembering that preliminary injunctions are granted -- or denied -- based on who the judge thinks is going to win the lawsuit eventually.)

...

 

On 11/11/2022 at 5:43 PM, Euler said:

On November 3, ATF/Garland filed an appeal to the 5th Circuit on the injunction protecting BlackHawk Manufacturing. On November 10, the 5th Circuit assigned the appeal case number 22-11086.

 

On December 15, the appeals court consolidated 22-11086 into 22-11071.

[Euler]

On 11/4/2022 at 9:54 PM, Euler said:

...

On November 2, Defense Distributed and SAF filed a motion to intervene as additional plaintiffs.

...

 

On December 19, the court granted the motion to add Defense Distributed and SAF as plaintiffs.

[Upholder]

 

[Upholder]

Defense Distributed and the Second Amendment Foundation, Inc.'s motion for summary judgment:

 

https://storage.courtlistener.com/recap/gov.uscourts.txnd.366145/gov.uscourts.txnd.366145.166.0.pdf

[Euler]

On January 5, Not An LLC (dba JSD Supply) filed a motion to intervene as an additional plaintiff.

 

On January 9, Polymer 80 filed a motion to intervene as an additional plaintiff.

 

(Everybody wants to sue the ATF, it seems, and this is the case where they want to do it.)

 

On January 17, the ATF moved to defer consideration of the JSD and Polymer 80 motions until after the summary judgement motions already being briefed (i.e., from all the other plaintiffs). The judge granted the motion unopposed by existing plaintiffs on January 18.

[Upholder]

DEFENDANTS’ COMBINED BRIEF IN OPPOSITION TO
ORIGINAL PLAINTIFFS’ AND INTERVENOR-PLAINTIFFS’
MOTIONS FOR SUMMARY JUDGMENT AND IN SUPPORT OF
DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

 

https://storage.courtlistener.com/recap/gov.uscourts.txnd.366145/gov.uscourts.txnd.366145.183.0.pdf

[2smartby1/2]

So if unfinished firearms are determined Constitutional, does that mean that Illinois law can be overturned, or would we still have to serialize lowers?   

BTW, thinking about Bruen and THT, why does anything need to be serialized?  It wasn't happening back then.

[Tvandermyde]

what happens in Texas is only good for 1. Texas 2. what ever injunction they put on the ATF handcuffs ATF nationwide. But Illinois law on the "ghost guns" is different and separate from what ATF is doing. So it will be a separate fight

[Flynn]

On 2/14/2023 at 12:53 PM, 2smartby1/2 said:

BTW, thinking about Bruen and THT, why does anything need to be serialized?  It wasn't happening back then.

 

Serial numbers are very recent addition to firearms "regulation" there is no relavant history and tradition to serial numbers on firearms beyond internal brand specific tracking, thus it's entirely means-ends and Bruen said that is moot, so as long as the courts uphold the precedent set in Bruen serial number requirements should mooted.

 

I suspect serial number requirements will have to be settled by the Supreme Court nationwide as I suspect there are a few appeals courts that will refuse to honor Bruen precent setting up a split.

[MrTriple]

On 2/14/2023 at 5:51 PM, Flynn said:

 

Serial numbers are very recent addition to firearms "regulation" there is no relavant history and tradition to serial numbers on firearms beyond internal brand specific tracking, thus it's entirely means-ends and Bruen said that is moot, so as long as the courts uphold the precedent set in Bruen serial number requirements should mooted.

 

I suspect serial number requirements will have to be settled by the Supreme Court nationwide as I suspect there are a few appeals courts that will refuse to honor Bruen precent setting up a split.

That being said, while I agree with the logic about the unconstitutionality of requiring serial numbers under the law, I'd still prefer manufacturers serialize their weapons if only for purely historical or liability reasons, such as for the purposes of product recalls.

[Tvandermyde]

On 2/17/2023 at 10:55 AM, MrTriple said:

That being said, while I agree with the logic about the unconstitutionality of requiring serial numbers under the law, I'd still prefer manufacturers serialize their weapons if only for purely historical or liability reasons, such as for the purposes of product recalls.

The difference, that i think you are missing is that while manufacturers can be required to put serial numbers on guns as part of the commercial trade of firearms, they can't force us to do so with home builds

[davel501]

On 2/17/2023 at 11:14 AM, Tvandermyde said:

The difference, that i think you are missing is that while manufacturers can be required to put serial numbers on guns as part of the commercial trade of firearms, they can't force us to do so with home builds

 

Post-Bruen, can they even force manufacturers?

[Tvandermyde]

On 2/17/2023 at 11:48 AM, davel501 said:

 

Post-Bruen, can they even force manufacturers?

 

 

Under Heller I think they can as to regulating commercial

[davel501]

On 2/17/2023 at 12:37 PM, Tvandermyde said:

 

 

Under Heller I think they can as to regulating commercial

 

Right, but didn't Bruen limit that to limitations in place before the 14th amendment?

[Tvandermyde]

NO