United States District Court, D. Utah
W. CLARK APOSHIAN, Plaintiff,
WILLIAM P. BARR, Attorney General of the United States, et al., Defendants.
MEMORANDUM DECISION AND ORDER ORDER DENYING MOTION
FOR PRELIMINARY INJUNCTION
N. PARRISH UNITED STATES DISTRICT COURT JUDGE
matter comes before the court on plaintiff W. Clark
Aposhian's Motion for Preliminary Injunction filed on
January 17, 2019. (ECF No. 10). Defendants filed an
opposition on February 6, 2019, (ECF No. 25), to which Mr.
Aposhian replied on February 11, 2019, (ECF No. 26). The
court heard oral argument for this motion on February 14,
2019. On the basis of that hearing, the parties'
memoranda, a review of relevant law, and for the reasons
below, plaintiff's Motion for Preliminary Injunction is
Regulatory Framework of Machine Guns and Bump-Stock-Type
began regulating machine guns with its passage of the
National Firearms Act of 1934 (the “NFA”). That
act defined such weapons as follows:
The term “machinegun” means any weapon which
shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger. The term
shall also include the frame or receiver of any such weapon,
any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in
converting a weapon into a machinegun, and any combination of
parts from which a machinegun can be assembled if such parts
are in the possession or under the control of a person.
26 U.S.C. § 5845(b). The Gun Control Act of 1968 (the
“GCA”) incorporated this definition by reference
into the criminal code. See 18 U.S.C. § 921(23)
(“The term ‘machinegun' has the meaning given
such term in section 5845(b) of the National Firearms Act . .
. .”). Today, with limited exceptions, it is
“unlawful for any person to transfer or possess a
machinegun.” 18 U.S.C. § 922(o).
2006, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (the “ATF”) ruled that a
bump-stock-type device called the Akins Accelerator qualified as
a machine gun. The Akins Accelerator employed internal
springs to harness the weapon's recoil energy to
repeatedly force the rifle forward into the operator's
finger. In labeling the Akins Accelerator a machine gun, the
ATF interpreted the statutory language “single function
of the trigger” to mean “single pull of the
trigger.” The inventor of the Akins Accelerator
subsequently challenged this interpretation in federal court.
After the district court rejected the challenge, the Eleventh
Circuit Court of Appeals affirmed, concluding that the
ATF's interpretation was “consonant with the
statute and its legislative history.” See Akins v.
United States, 312 Fed.Appx. 197, 200 (11th Cir. 2009).
2008 to 2017, the ATF issued ten letter rulings in response
to requests to classify bump-stock-type devices. Applying the
“single pull of the trigger” interpretation,
these rulings found that the devices at issue-including Mr.
Aposhian's Slide Fire device-indeed allowed a shooter to
fire more than one shot with a single pull of the trigger.
However, because the subject devices did not rely on internal
springs or other mechanical parts to channel recoil energy
like the Akins Accelerator, the ATF concluded that they did
not fire “automatically” within the meaning of
the statutory definition.
The Final Rule
October 1, 2017, a lone shooter employing multiple
semi-automatic rifles with attached bump-stock-type devices
fired several hundred rounds of ammunition into a crowd in
Las Vegas, Nevada, killing 58 people and wounding roughly 500
more. Following this event, members of Congress urged the ATF
to examine whether devices like the one used in the attack
were actually machine guns prohibited by law. On December 26,
2017, the Department of Justice (the “DOJ”)
published an Advanced Notice of Proposed Rulemaking (ANPRM),
soliciting comments and manufacturer/retailer data regarding
bump-stock-type devices. See Application of the
Definition of Machinegun to “Bump Fire” Stocks
and Other Similar Devices, 82 Fed. Reg. 60929 (Dec. 26,
2017). On February 20, 2018, the President issued a
memorandum directing the Attorney General “to dedicate
all available resources to complete the review of the
comments received, and, as expeditiously as possible, to
propose for notice and comment a rule banning all devices
that turn legal weapons into machineguns.” Application
of the Definition of Machinegun to “Bump Fire”
Stocks and Other Similar Devices; Memorandum for the Attorney
General, 83 Fed. Reg. 7949 (Feb. 23, 2018).
March 29, 2018, the DOJ published a notice of proposed
rulemaking (NPRM). See Bump-Stock-Type Devices, 83
Fed. Reg. 13442 (Mar. 29, 2018). Following a period of public
comment, the DOJ issued a Final Rule on December 26, 2018
that (1) formalizes the ATF's longstanding interpretation
of “single function of the trigger” to mean
“single pull of the trigger”; (2) interprets
“automatically” to mean “as the result of a
self-acting or self-regulating mechanism that allows the
firing of multiple rounds through a single pull of the
trigger”; and (3) concluding that bump-stock-type
devices are machine guns proscribed by the statutory scheme
as interpreted by the Final Rule. See
Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018).
The Final Rule directs owners of bump-stock-type devices to
either destroy or surrender them to the ATF before the Final
Rule goes into effect on March 26, 2019. 83 Fed. Reg. 66515.
Aposhian lawfully purchased and continues to own a Slide Fire
bump-stock-type device. On January 16, 2019, Mr. Aposhian
filed suit against the Attorney General of the United States,
the DOJ, the Director of the ATF, and the ATF. (ECF No. 2).
On January 17, 2019, Mr. Aposhian filed this motion for
preliminary injunction seeking to enjoin the Final Rule from
going into effect on March 26, 2019. (ECF No. 10).
obtain preliminary injunctive relief, a movant must
establish: “(1) a substantial likelihood of success on
the merits; (2) irreparable harm to the movant if the
injunction is denied; (3) the threatened injury outweighs the
harm that the preliminary injunction may cause the opposing
party; and (4) the injunction, if issued, will not adversely
affect the public interest.” Gen. Motors Corp. v.
Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.