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NCLA Asks 10th Cir. to Reverse Panela??s Failure to Follow Chevron Precedent in Bump Stock Ban Case

Washington, D.C., June 19, 2020 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance today filed a petition for rehearing en banc in the U.S. Court of Appeals for the Tenth Circuit in the case of W. Clark Aposhian v. William Barr, Attorney General of the United States, et al. NCLA is seeking review from the full Court, arguing that the panel majority erred in last montha??s 2-1 decision to denyA NCLA client Clark Aposhiana??s appeal. Aposhian, who last spring was the a??last man in Americaa?? to own a bump stock legally, is challenging the ban on bump stocks issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as an unlawful effort to amend a statute via regulation.Mr. Aposhiana??s en banc Tenth Circuit appeal argues that the panel majority committed two main legal errors. First, the panel applied Chevron deference even though ATF specifically waived that argument. Chevron is a judicial doctrine that usually allows courts to defer to agency interpretations of ambiguous statutes. ATF presumably refused to invoke Chevron deference, because it agrees with Mr. Aposhian that Chevron does not apply to the interpretation of criminal laws. Second, the panel majority disregarded the rule of lenity. When a criminal statute is ambiguous, the rule of lenity dictates that the law be interpreted to the benefit of the criminal defendant. Although Mr. Aposhian is not charged with a crime, the statute he is challenging is a criminal law, so the rule of lenity applies. Instead, the panel majority applied Chevron deference to resolve the alleged ambiguity in the statute. U.S. Supreme Court precedent and prior Tenth Circuit precedent point in the opposite direction from what the panel majority held on both of these issues.As Judge Joel Carson wrote in his dissenting opinion in May, by a??turning a blind eye to the governmenta??s request and applying Chevron anywaya??the majority placed an uninvited thumb on the scale in favor of the government.a?? Mr. Aposhiana??s appeal asks the Tenth Circuit to rehear this case and reverse these two legal errors.The potential consequences of this appeal are dire. ATF has made bump stocks illegal to possess through aA Final RuleA issued without statutory or constitutional authority. In so doing, ATF turned 500,000 innocent purchasers into felons (but gave them 90 days to turn in or destroy their devices to avoid prosecution).The Final Rule reinterpreted the words a??automaticallya?? and a??single function of the triggera?? in the National Firearms Act to classify bump stocks as a??machine guns.a?? Even though ATF had previously approved bump stocks for sale, and determined that they were not machine guns, the new Rule treats owning a bump stock the same as owning an actual machine gun, which is a federal crime punishable by up to 10 years in prison. The panela??s decision upholding the rule would allow the same agency tasked with enforcing the law to create new criminal liability via regulation. If the Tenth Circuit denies en banc review, Mr. Aposhian will either have to appeal the denial of his preliminary injunction to the U.S. Supreme Court or return to federal district court for a trial on the merits.
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