Bumpstocks Didn't Get Stay - What To Do Now

This past Friday the US Supreme Court denied the plaintiffs in Guedes et al v. BATFE and Codrea v. Barr a stay in the bump stock ban rule and referred the request back to the Circuit Court for the DC Circuit.

18A1019 GUEDES, DAMIEN, ET AL. V. BUREAU OF ALCOHOL, ET AL.

The application for stay, presented to The Chief Justice and by him referred to the Court, is denied.

Applicants request that if we deny this application we grant a limited stay of 120 hours to allow them to come into compliance with the Final Rule. We refer the issue of such a stay to the D.C. Circuit for its consideration.

Justice Thomas and Justice Gorsuch would grant the application.

So where does this leave the case now?

The Firearms Policy Foundation released a statement by email along with the response of the Circuit Court on Sunday evening. If you do have a bump stock and are a member of one of the organizations such as Florida Carry or the Firearms Policy Foundation, you have until 5pm, Wednesday, April 10, 2019 to legally turn it in.

From FPF:


On Friday, the Supreme Court denied our legal team’s request for a stay (i.e., postponement) of the ATF’s Final Rule re-classifying “bump-stock-type” devices as illegal machineguns while we continue to litigate the various claims we raised in our lawsuit and in the other consolidated cases. The D.C. Circuit subsequently ordered the following:

PER CURIAM ORDER [1781463] filed that, based on the government’s representation that it will not enforce the Bump-Stock Rule against the named plaintiffs or their bona fide members before 5:00 p.m. on Wednesday, April 10, 2019, the emergency joint motion to extend stay order [1781365-2] be denied and the administrative stay entered on March 23, 2019, and clarified on March 25, 2019, be dissolved. The Clerk is directed to issue the mandate forthwith. Before Judges: Henderson, Srinivasan and Millett. [19-5042, 19-5044]

The Government (DOJ/ATF) has agreed to allow the individual plaintiffs in Guedes, et al. v. BATFE, et al. and the organizational plaintiffs’ – i.e., Firearms Policy Foundation, Florida Carry, Inc., and Madison Society Foundation, Inc. -- bona fide members (as well as the individuals in the consolidated Codrea, et al. action) to come into compliance with the new Final Rule by 5p.m. on Wednesday, April 10, 2019. The Government also represented that it “will also retain the bump stocks” that are provided to them in compliance efforts until our legal action is completely concluded.

Friday’s Supreme Court decision to deny the stay we requested was disappointing but not entirely unexpected. But importantly, there is much litigation left before the cases are disposed of. Our team is currently working on a petition for en banc rehearing by the full D.C. Circuit. And we are prepared, if need be, to petition the U.S. Supreme Court for a writ of certiorari (review).

We maintain that the Government’s new rule is unconstitutional and unlawful. And we will continue to aggressively litigate this case and work to defend American gun owners from this unlawful ban mandated by President Donald Trump. Updates will continue to be posted to our BumpstockCase.com case webpage.

In an abundance of caution, we wanted to make you aware of how the Final Rule could affect owners of affected devices. As set forth in the Final Rule, 83 Fed.Reg. 66530, and according to the ATF, a bump-stock-type device owner’s options are:

1) Destroy the bump-stock device according to the ATF’s published “Bump Stock Destruction Instructions”; or,

2) Surrender it/them to the “nearest” ATF office. (ATF advises that it is best to make an appointment beforehand with the nearest ATF office.) You can find your local ATF field office and their phone number at https://www.atf.gov/contact/local-atf-offices.

Non-compliance with the ATF’s Final Rule (i.e., continued possession of a bump-stock-type device) could lead to serious criminal liability. Individuals (or a company/organization) who maintain possession of an affected device can be prosecuted for unlawful possession of a putative machinegun, where he/she/they can be imprisoned for up to 10 years and fined up to $250,000 (or more in some cases) per violation.

Chief Counsel Joshua Prince of Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C., who is representing Firearms Policy Foundation and numerous other plaintiffs in Guedes, et al. v. BATFE, et al., has suggested that individuals who wish to comply with the ATF’s Final Rule by surrendering their device to the ATF do so under protest.

As you may be aware, both ATF’s website relating to bump-stock devices and the Final Rule, 83 Fed.Reg. 66530, declare that “current possessors also have the option to abandon bump-stock-type devices at the nearest ATF office.” In spite of that, however, some reports (and our own experience) suggest that not all ATF local offices are accepting bump-stock devices. Thus, you should call the local ATF office before you travel there to confirm that they are, indeed, accepting affected devices.

If they are accepting such devices, then make them aware that you intend to visit their office to surrender your bump-stock device(s) under protest and inquire as to whether they have any specific procedures for your entry into the building.

Before you go, you will want to take pictures of your bump-stock device(s), in case there is ever a question as to the condition, make, and model of it/them. And you should also consider preparing a letter, such as the Sample Letter provided below, to advise the ATF that you are providing them your bump-stock device(s) under protest.

When you go, provide the ATF agent handling your matter with a copy of the letter and demand that they provide you with a property receipt that reflects their receipt of your bump-stock device(s) and specifies the make and model of the device(s). Be aware that they may attempt to have you sign an ATF 3400.1 Form – Consent to Forfeiture or Destruction of Property and Waiver of Notice – which you should NOT sign under ANY circumstance. In the event that they ask you to sign an ATF 3400.1, inform them that the only ATF form you are willing to sign is an ATF 3400.23 – Receipt of Property and Other Items. If they argue at all with you, politely tell them to review the internal memo that ATF circulated regarding the right of individuals to surrender bump-stock-type devices under protest and those individual’s right to refuse to sign an ATF 3400.1 form.

It would also be prudent to separately document your experience of the encounter in writing – such as the date and time of your visit, the location of the ATF office you went to, the names or other identifying information (ID #, etc.) of all ATF agents or persons you spoke with, the details of all discussions, and any other information they told or provided you – and keep it in a safe place.

You can also let our team know if the ATF in any way refuses or rejects your attempt to comply with the Final Rule. You can submit a report of your issue to hotline@fpchq.org and/or contact your attorney for specific legal advice.

In the event that ATF elects to institute a forfeiture action against your property, they are required to serve you with a copy. If that happens, you should immediately contact an attorney, preferably one who specializes in federal firearms law, if you wish to challenge ATF’s ability to forfeit your property. Again, you can submit a report of your issue to hotline@fpchq.org, but always contact your attorney for specific legal advice.

Again, we will continue to aggressively litigate this case and work to defend American gun owners from this unlawful and unconstitutional ban.

If you are able, please help support this important lawsuit and our fight for your rights by making a tax-deductible donation at FightATF.com.

NOTE: This message and its contents are intended to provide general information only. It is not intended to provide legal advice. You should always contact your attorney if you want or need specific legal advice.