WICHITA FALLS, Texas – The three-judge panel from the Fifth Circuit Court of Appeals clarified its ruling in Mock v. Garland.
The case is a lawsuit brought by the Firearms Policy Coalition (FPC) challenging the Bureau of Alcohol Firearms and Tobacco (ATF) new rule restricting the use of pistol stabilizing devices on pistols. Under the ATF rule, firearms owners would have to remove the brace and render it impossible to reinstall, turn in the firearm to the ATF, or register the gun as a short-barreled rifle (SBR).
FPC sued the ATF, claiming that the organization violated the Administrative Procedures Act (APA) and the rule of lenity. A District Judge ruled against FPC and found for the defendant. FPC immediately appealed to the Fifth Circuit Court of Appeals, asking the court to step in and issue an injunction against the new ATF rule. A three-judge panel decided that the gun rights organization was likely to succeed on the merits of the case and its plaintiffs would suffer irreparable harm if the rule against braced pistols were allowed to go into effect.
The 5th court issued a limited injunction against the enforcement of the new pistol brace regulation.
The injunction was limited to the “plaintiffs” in the case. FPC filed a motion asking the court to clarify its ruling.
The group wanted to know if the injunction extended to the membership of the organization and the customers of Co Plaintiff, Maxim Defense Industries. Justice Department lawyers filed a motion in opposition to the motion for clarity. They claim the ruling was clear and only extended to the named plaintiffs, not the FPC membership or Maxim Defense’s customers. The original date of clarification was set to be June 2, 2023, but the rule was due to kick in on June 1.
The court went ahead and issued the clarification on Friday, stating that the injunction did apply to all members of FPC and all customers of Maxim Defense. FPC claims that it even applies to new members. The ATF rule gave FPC a massive boost to its membership list. With other rulings coming down the pipe, the ATF rule might be Second Amendment groups’ biggest fundraising boost in history.
“This clarification is granted essentially for the reasons concisely set forth in the May 25, 2023, Plaintiffs-Appellants’ Reply to Their Opposed Motion for Clarification of Injunction Pending Appeal. There, the appellants acknowledge that ‘[a]lthough a nationwide injunction would have functionally addressed the question of scope, on which Plaintiffs now seek clarity, Plaintiffs understand that one was not given . . . . Instead, Plaintiffs merely request clarification on whether their reading of the term ‘Plaintiffs’ to include the customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition (‘FPC’) have represented since day one of this litigation is correct,’” the motion reads.
“That reading is correct. Also as requested, the term ‘Plaintiffs in this case’ includes the individual plaintiffs’ resident family members,” the motion continued.
In Realed Challenges
Thursday, May 25th, 2023, the judge in the Second Amendment Foundation’s (SAF) challenge to the same rule issued an injunction to the named plaintiffs in the case. SAF could theoretically go back and ask the judge to expand that injunction to all members of the organization due to the clarification from the Fifth Circuit Court of Appeals.
The judge in the Gun Owners of America (GOA) case Texas v. ATF held a status conference yesterday with the parties to discuss the Circuit Court’s ruling in Mock v. Garland. The judge wanted both sides’ take on the Circuit Court’s meaning in enjoining the new rule. Both parties are due to submit briefs by noon on Tuesday of the coming week and respond to each other’s briefs by noon on Wednesday. The judge plans on deciding on an injunction on Wednesday. It seems like the judge is inclined to mirror whatever the Circuit Court decides. That would mean the GOA membership and residents of Texas would also be protected from the rule.
The Firearms Accountability Regulatory Coalition (FRAC), which includes SB Tactical, has a case pending in North Dakota, which is part of the Sixth Circuit. The plaintiffs have referenced the Fifth Circuit Court’s decision in Mock v. Garland and asked the court to issue relief. It isn’t clear what the judge will do in that case. There is also a new case out of Florida in the Eleventh Circuit, which was just filed this week.
The rule regarding pistol stabilizing devices seems to be in peril.
With FPC getting an injunction for its members and GOA appearing to be on the verge of getting the same relief, millions of Americans will be protected from ATF overreach. If SAF asks for the same protection and gets it, it would mean three of the most prominent gun rights organizations’ members will be shielded.
If FRAC can get the same relief, most pistol brace owners will be covered from ATF enforcement actions since the case includes SB Tactical, the biggest manufacturer and seller of pistol stabilizing devices. Also, the lawsuit includes 24 states, so the judge could enjoin the rule for everyone in those states. If the tide keeps going in favor of the plaintiffs, the ATF might have just given out thousands of free tax stamps for no reason.
The new rule on pistol stabilizing devices will go into effect on June 1, 2023, unless a nationwide injunction is issued.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
