Mock v. GarlandMock v. Garland
Case Information
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION
WILLIAM T. MOCK, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:23-cv-00095-O
§
MERRICK GARLAND, et el., §
§
Defendants. § OPINION & ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Before the Court are Firearms Policy Coalition, Inc., William T. Mock, Christopher Lewis, and Maxim Defense Industries, LLC’s (“Plaintiffs”) Motion for Preliminary Injunction (ECF Nos. 36, 75), filed February 21, 2023 and August 18, 2023; the Attorney General of the United States, the United States Department of Justice, the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (the “Government Defendants”) Response in Opposition to Plaintiffs’ Motion (ECF Nos. 37, 84), filed March 10, 2023 and September 1, 2023; and Plaintiffs’ Replies (ECF Nos. 38, 85), filed March 17, 2023 and September 8, 2023. Having considered the parties’ briefing and applicable law, the Court GRANTS Plaintiffs’ motion for preliminary injunction against the Government Defendants.
I. BACKGROUND
A. Statutory and Regulatory Background
In the first major federal attempt to regulate firearms, Congress enacted the National
Firearms Act of 1934 (“NFA”), 26. U.S.C. §§ 5801–5872, which focused particularly on
dangerous and concealable weapons used in organized crime.
See Lomont v. O’Neill
,
[A] weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.
Thirty years later, Congress enacted the Gun Control Act of 1968 (“GCA”),
Authority to administer and enforce the Acts is vested in the Attorney General,
Since 2012, the ATF has seen a proliferation of “stabilizing brace” devices, which were originally designed “to assist people with disabilities or limited strength or mobility” to safely and single-handedly fire heavy pistols. [1] With time, the devices began to include characteristics resembling shoulder stocks and the ATF soon learned that manufacturers were widely marketing these “braces” to consumers as a means of creating functional SBRs that avoid NFA requirements. [2]
In response to this trend, the ATF published a notice of proposed rulemaking (“NPRM”)
in June 2021, which proposed amendments to
[A] weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors . . . indicate that the weapon is designed, made, and intended to be fired from the shoulder.
Id.
(interpreting the identical definition of “rifle,” which is defined similarly in both the
NFA and GCA,
(1) Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
(2) Whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method), that is consistent with similarly designed rifles; (3) Whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed; (4) Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
(5) The manufacturer's direct and indirect marketing and promotional materials indicating the intended use of the weapon; and
(6) Information demonstrating the likely use of the weapon in the general community.
Id. While the NPRM had proposed a table (Worksheet 49999) allotting points for specific criteria, the Final Rule did not implement the weighted point system. Id. at 6,479–80. The Final Rule took effect immediately for newly made or transferred firearms, while individuals already in possession of subject firearms were given a 120-day registration period (ending May 31, 2023) to come into compliance with the Final Rule before the ATF began enforcing it. Id. at 6,478. For those in previous lawful possession of subject firearms that declined to register them by May 31st, the ATF demanded that before the registration window closed, they must have otherwise: removed the barrels from their firearms and attached 16-inch or longer barrels in their place; permanently altered or disposed of their stabilizing braces so that they could never be reattached to their firearms; divested themselves of their firearms by turning them in to the ATF; or permanently destroyed their firearms. Id. at 6,570.
But even despite laying out these alternative directives for firearm owners, the ATF shortly
thereafter explained that it is still entirely plausible for none of these measures to suffice for
compliance. To illustrate, the Final Rule specifies that a firearm owner can still be criminally
charged under the NFA for constructively possessing an unregistered SBR if their pistol could be
combined with any number of objects that the ATF believes are demonstrative of a firearm’s
design for shoulder fire.
Id.
at 6,574-75. The set of subjective criteria the ATF lists for potential
constructive possession of an NFA rifle comprises open-ended, broadly articulated standards that
are left largely undefined or underdeterminate.
Id.
The ATF has a decades-long history of pressing
regulatory enforcement actions based on its own constructive possession theories in other NFA
contexts, where the mere ease of creation of a subject firearm has been sufficient to support
criminal liability for firearm owners under the NFA.
See, e.g.
,
United States v. One TRW, Model
M14, 7.62 Caliber Rifle
,
The ATF barred compliance registration any time after May 31st—whereupon anyone still in possession of a braced firearm that did not submit to registration was then deemed, overnight, to have become a felon in possession of an unregistered NFA rifle. Final Rule at 6,481, 6,498. So too, it has since no longer been the case that any of the alternative compliance measures enumerated by ATF ( i.e. , barrel replacement, brace disposal or modification, firearm divestiture or destruction, etc.) will suffice for avoiding criminal prosecution under the NFA through the Final Rule’s reinterpretaton of it. Id. Following the closing of its registration window, the ATF reported that its registration-compliance rate is a mere 8%, according to the higher end of its estimates. [3]
Liability under the federal firearm laws and regulations adopted pursuant thereto carries
serious criminal penalties. For example, a violation of the GCA subjects a person to fines and a
five-year maximum prison term.
B. The Parties The Firearms Policy Coalition, Inc. (“FPC”) аnd a group of its dissatisfied members brought forth a challenge to the Final Rule against the Government Defendants: Attorney General Merrick Garland, in his official capacity; the United States Department of Justice; Director of ATF Steven Dettelbach, in his official capacity; and the ATF. [4] FPC is a nonprofit gun-rights organization whose membership encompasses individual gun owners, licensed firearms manufacturers and retailers, gun ranges, firearms trainers and educators, and many others. [5] Plaintiffs William T. Mock and Christopher Lewis are Texas residents who each own at least one pistol with a stabilizing brace attached to it and plan to purchase more braced firearms at the present time but for the Final Rule’s added regulatory obstacles. [6] Plaintiff Maxim Defense Industries, LLC (“Maxim Defense”) is a firearms and firearms accessories manufacturer and retailer that specializes in stabilizing braces and braced pistols. [7] The majority of Maxim Defense’s revenues are attributable to sales of products now subject to the added strictures of the Final Rule. [8] Plaintiffs Mock and Lewis are individual members of FPC, while Plaintiff Maxim Defense is a commercial member of FPC. [9]
C. Procedural History
Plaintiffs filed this lawsuit on the day the Final Rule was announced.
[10]
Three weeks later,
on February 21, 2023, Plaintiffs moved the Court for a preliminary injunction against the
Government Defendants’ enforcement of the Final Rule.
See
On August 1, 2023, the United States Court of Appeals for the Fifth Circuit reversed the
Court’s order denying a preliminary injunction and decided in favor of Plaintiffs’ logical
outgrowth APA claim, holding that (i) “it is relatively straightforward that the Final Rule was not
a logical outgrowth of the Proposed Rule, and the monumental error was prejudicial,” and that (ii)
“[t]he Final Rule therefore must be set aside as unlawful.”
Mock v. Garland
,
Following the parties’ completion of supplemental briefing, [13] and additional briefing from Palmetto State Armory, LLC (“PSA”), the Firearms Regulatory Accountability Coalition, Inc. (“FRAC”), and NST Global, LLC (d/b/a SB Tactical) (“SB Tactical”) as amici curiae , Plaintiffs’ motion is now ripe for the Court’s review on remand. [14]
II. LEGAL STANDARD
The decision to extend interlocutory relief rests with the sound discretion of the Court.
See
Miss. Power & Light Co. v. United Gas Pipe Line Co.
,
Upon determination that a party is entitled to an injunction, a court must make a separate
determination regarding the appropriate scope of the prospective relief, which is “dictated by the
extent of the violation established.”
Califano v. Yamasaki
,
A. Substantial Likelihood of Success on the Merits
Plaintiffs were first required to demonstrate that they are substantially likely to succeed on
the merits of one of their claims.
Daniels Health Servs.
,
B. Substantial Threat of Irreparable Harm Absent Injunctive Relief
Plaintiffs are further obliged to show a substantial threat of irreparable harm. This exists
where “there is no adequate remedy at law.”
Louisiana v. Biden
,
A showing of economic injury is ordinarily insufficient to establish irreparable harm when
damages are recoverable at the conclusion of litigation.
Janvey v. Alguire
,
Irreparable harm must also be concrete, non-speculative, and more than merely
de minimis
.
Daniels Health Servs.
,
1. Individual FPC Members The Court finds that Mock, Lewis, and other individual FPC members are threatened with irreparable injuries in the absence of an injunction. The threats to individual FPC members are twofold: (i) sustaining permanent and nonrecoverable costs from their compliance with an unlawfully issued regulation; and (ii) suffering impairment of their fundamental right to keep and bear lawful arms in self-defense. The Court finds that such threats of irreparable harm posed by enforcement of the Final Rule are credible, imminent, and intertwined with one another. As the record currently stands, Mock and Lewis each lawfully possess at least one pistol with a stabilizing brace attached to it, which was acquired through lawful means prior to the ATF’s promulgation of the Final Rule. Mock and Lewis have maintained and used, and continue to maintain and use, each of their braced pistols for the primary purpose of general self-defense and self-defense in the home. Plaintiffs each maintain a stabilizing brace attached to their pistols as an effective tool for improving their capacity to defend their lives, their families’ lives, and their homes through safer and more efficient means. The attached braces foster greater stability, control, and precision in the firing of Plaintiffs’ pistols so as to enable them to more easily and comfortably accomplish the narrow end goals of self-defense—that is, to deter or neutralize life-threatening perpetrators, preserve innocent life, and as best as possible prevent or mitigate the degree of bodily injury suffered by others. In so enabling a more proficient and exacting performance of self- defense, the attributes provided by the stabilizing braces to Plaintiffs’ lawfully owned defense weapons significantly lessen the cause for lethal and irreversible misfire, friendly fire, or other collateral damage, as well as the probability of being outmatched by or falling victim to dangerous assailants. It is purely for these reasons that Mock and Lewis also plan to purchase additional braced pistols at this immediate point in time—to aid their self- and home-defense capabilities. The ATF’s own regulatory analysis concludes that the Final Rule has effectively reclassified 99% of all pistols with stabilizing braces to NFA rifles. Through seminal Final Rule adjudications, the ATF has already reclassified a whole host of specific weapons platforms and commercially available braced firearms to NFA rifles. Upon review of this record in conjunction with Plaintiffs’ declarations, there is no doubt that the Final Rule will subject both FPC members to criminal liability for currently possessing each of their braced pistols. The moment the Fifth Circuit’s injunction dissolves, Mock and Lewis will become felons because their braced pistols have become unregistered SBRs under the Final Rule’s reinterpretaton of the NFA. Furthermore, Mock’s and Lewis’ possession of these specific braced pistol models and platforms—which are newly classified NFA rifles—has been revealed in precise detail to the Government Defendants in this litigation. Thus, the two FPC members are and likely will be prosecutable at any point in time absent the Court’s preliminary injunction against the Government Defendants’ enforcement of the Final Rule. The evidence also suggests that without such relief, the FPC members are barred from carrying out their concrete plans to acquire additional braced pistols for home- and self-defense at this present point in time—but for complying with the Final Rule’s added NFA requirements or facing criminal charges under the NFA through the Final Rule’s enforcement.
Neither FPC member wishes to comply with the Final Rule with respect to the braced рistols in their current possession and in their immediate acquisition plans. As of the expiration date of the Fifth Circuit’s injunction, it is certain that both continue to possess and intend to remain in possession of their braced pistols. At the same time, however, Mock and Lewis are strongly dissuaded from continuing at all to possess their home- and self-defense pistols, with or without the stabilizing braces, should enforcement of the Final Rule be allowed to resume. They share an inclination toward dispossessing themselves entirely of these home- and self-defense weapons out of fear of criminal prosecution for constructively possessing an unregistered SBR. The ATF’s constructive possession criteria is simply too broad and unclear for the FPC members to understand or otherwise decipher through other efforts, with a comfortable degree of certainty, that they are comprehensively abiding by the Final Rule.
The Court finds that this record presents a “credible threat of a potential felony indictment” against each of the FPC members if they proceed with their intent to maintain current possession of their braced (or unbraced) pistols or acquire additional braced pistols for lawful uses in home- and self-defense. VanDerStok v. Garland , 633 F. Supp. 3d 847, 855, 857 (N.D. Tex. 2022) (O’Connor, J.).
i. Nonrecoverable Compliance Costs At the outset, Mock and Lewis have no trouble establishing a substantial threat of irreparable harm in the form of nonrecoverable compliance costs.
“When determining whether injury is irreparable, it is not so much the magnitude but the
irreparability that counts.”
Texas v. EPA
,
Here, because the ATF-designated registration window has long since passed, Mock and Lewis may only narrowly avoid enforcement of the Final Rule through permanent and costly modification, divestiture, or destruction of their otherwise lawfully owned braced pistols—and only if the Government Defendants do not prosecute them under the Final Rule first.
The FPC members might attempt to immediately removе their braced pistols from the Final
Rule’s coverage by disassembling the barrels and installing long-rifle barrels in their place. But
according to the ATF’s own analysis, this will cost an estimated $1,134 for an individual to
complete. Should Mock and Lewis instead attempt to permanently dispose of the stabilizing braces
or otherwise eliminate their attachability to pistols, they would each sustain a loss of $270 or more
based on the ATF’s estimated average cost of a stabilizing brace. However, the Government
Defendants are now fully informed of Mock’s and Lewis’ possession of specific braced pistol
models and platforms that have been reclassified as NFA rifles under the Final Rule. Mock and
Lewis themselves are also disinclined from continuing to possess any unbraced pistols due to the
substantial uncertainty behind what the ATF considers to be constructive possession under the
Final Rule. It is much more likely therefore that when faced with this “credible threat of criminal
prosecution” on the horizon,
VanDerStok
,
Whatever course the FPC members choose, none of these concrete compliance costs are
recoupable for them. The Government Defendants retain their sovereign immunity against
monetary damages in APA actions.
See
ii. Impairment of Fundamental Right
The situation becomes far more dire for the FPC members in the absence of the Court’s
intervening protection when one considers the burden the Final Rule threatens to impose on their
fundamental right to keep and bear arms in self-defense.
See
U.S. C ONST . AMEND . II.
[16]
Where a plaintiff’s alleged fundamental right is “‘either threatened or in fact being
impaired,’” that plaintiff is substantially threatened with irreparable injury
per se
.
Deerfield Med.
Ctr.
, 661 F.2d at 338 (quoting
Elrod
, 427 U.S. at 373). Such is the case because “once an
infringement has occurred it cannot be undone by monetary relief.”
Id.
Thus, plaintiffs need only
properly make out an “alleged violation” or “deprivation” of a constitutional right to demonstrate
that irreparable harm is suffered or threatened.
Opulent Life Church
,
In this litigation, Plaintiffs allege that the Government Defendants’ promulgation of the Final Rule violates their constitutional rights provided under the Second Amendment. Separate from the merits of this claim, the Court finds that the Government Defendants’ implementation and enforcement of the Final Rule substantially threatens to inflict irreparable constitutional harm upon the FPC members. Absent injunctive relief, the Final Rule will impair and threaten to deprive them of their fundamental right to keep and bear commonly used arms as a means of achieving the inherently lawful ends of self-defense. See U.S. C ONST . AMEND . II (providing that the “right of the people to keep and bear Arms, shall not be infringed.”).
Weapon in Common Use.
The Second Amendment prohibits government from infringing
upon an individual’s right to keep and bear arms for self-defense.
New York State Rifle & Pistol
Ass’n, Inc. v. Bruen
,
A weapon is in “common use” rather than “dangerous and unusual” if it is “commonly
possessed by law-abiding citizens for lawful purposes
today
.”
Caetano v. Massachusetts
, 577 U.S.
411, 420 (2016) (Alito, J., concurring in the judgment) (emphasis in original);
Heller
, 554 U.S. at
625 (holding that the Second Amendment guarantees the right possess and carry weapons
“typically possessed by law-abiding citizens for lawful purposes”). The relevant inquiry under this
standard is the current total number of a particular weapon that is in lawful possession, ownership,
and circulation throughout the United States.
See, e.g.
,
Caetano
, 577 U.S. at 420 (Alito, J.,
concurring in the judgment);
Friedman v. City of Highland Park, Ill.
, 577 U.S. 1039 (2015)
(Thomas, J., dissenting from the denial of certiorari);
see also Hollis v. Lynch
,
The Court finds that the braced pistols subject to enforcement of the Final Rule are in
common use today. For starters, it is “undisputed” that pistols such as those in the FPC members’
possession are, on their own and without the stabilizing braces, already deemed to be among the
weapons “most commonly used today for [lawful] self-defense.”
Ibid
;
Mock
,
Accordingly, the Court finds that braced pistols regulated under the Final Rule are
commonly used by law-abiding citizens for lawful purposes. The FPC members’ possession and
use of brace pistols is therefore within the ambit of Second Amendment protection.
See Bruen
,
Presumptively Protected Conduct.
“
When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct” from the regulation at
issue.
Bruen
,
The Supreme Court has already established that the text and history of the Second
Amendment’s operative clause, “the right of the pеople to keep and bear Arms,” U.S. C ONST . AMEND . II, protect an individual’s right to possess, carry, and operate a commonly used handgun
in the home and in public for the lawful purpose of immediate self-defense.
See Heller
, 554 U.S.
at 579-592, 635-36 (holding that the text and history cover home possession of commonly used
handguns for ready use in armed self-defense);
Bruen
,
The Second Amendment also presumptively protects the FPC members’ proposed course of conduct insofar as it involves “making common, safety-improving modifications to otherwise lawfully bearable arms” for the purpose of enhancing the performance of self-defense. Mock , 75 F.4th at 578, 588 (Willett, J., concurring). The conduct of acquiring, attaching, and maintaining rearward attachments, such as a stabilizing brace, serves to “make the pistol more stable and [thus] the user more accurate.” Id. And as explained earlier, “[a]ccuracy, in turn, promotes safety” in the real-life exercise of armed self-defense. Id. The successful performance of armed self-defense entails not only deterring or neutralizing life-threatening perpetrators, but also preserving innocent life and preventing bodily injury to others as much as possible. Users directly advance these fundamental ends of self-defense when they modify “lawfully bearable pistols ” with a “rearward attachment—whether as a brace or a stock.” Id. The increased control and precision to pistol fire materially lowers the probability of potentially lethal misfire and collateral damage, as well as being outmatched by or falling victim to dangerous assailants. Such safety-improving modifications are especially critical for “permit[ting] disabled and weaker persons to fire pistols more easily,” and “more safely and comfortably,” to accomplish a more proficient and exacting self-defense. Id. at 566, 571.
The history interwoven with the “right of the people to keep and bear Arms,” U.S. C ONST . AMEND . II, indicates that the Second Amendment’s text has long incorporated the right of personal gunsmithing, i.e. , the right of private individuals to modify or acquire modifications to lawfully bearable firearms so as to increase their accuracy and safety for a more effective exercise of self- defense. For example, in order “[t]o sustain themselves against a large and well-supplied British military throughout the [Revolutionary] war, the Americans relied on gunsmiths, individuals with knowhow from working on their own arms , and Americans who were willing to learn the art of arms manufacturing .” Joseph G.S. Greenlee, The American Tradition of Self-Made Arms , 54 S T . M ARY ’ S L.J. 35, 51 (Apr. 11, 2022) (emphasis added). Analogous to the role that stabilizing braces play for contemporary pistol owners, Founding Era gunsmithing involved modifying lawfully bearable pistols with extended grips and rearward stocks to facilitate greater stability, control, and accuracy in single-handed self-defense fire. [18] The Court is persuaded upon this record that the Second Amendment’s text and history “presumptively guarantees” Plaintiffs Mock and Lewis the right to modify lawfully bearable pistol arms with rearward stabilizing braces for the purpose of improving the performance attributes necessary to successful armed self-defense. Bruen , 142 S. Ct. at 2135.
Consequently, the Court finds that the proposed “conduct” of the FPC members— i.e. , possessing and using a stabilizing braced pistol for enhanced self-defense capabilities in the home and in public—is “presumptively protect[ed]” by the Second Amendment from the interference of disagreeing restrictions in the Final Rule. Id. at 2129-2130.
Threat of Impairment.
Ordinarily, the constitutional presumption established by the FPC
members would shift the burden to the Government Defendants to “then justify its [Final Rule] by
demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.”
Id.
at 2130. The Plaintiffs’ presumption of protection against the Final Rule is so strong that “
[o]nly
if [the Final Rule’s] firearm regulation is consistent with this Nation’s historical tradition may [the]
court conclude that [Plaintiffs’] conduct falls outside the Second Amendment’s ‘unqualified
commаnd.’”
Id.
at 2126 (quoting
Konigsberg v. State Bar of Cal.
,
However, under this particular posture, the Court need not turn to whether the Government Defendants surmount this onerous threshold. To reiterate, the Court makes no holding on this motion as to whether the Final Rule violates Plaintiffs’ Second Amendment rights on the merits of their claims. Rather, the Court merely determines, based on the record before it, whether Mock and Lewis face a substantial threat of irreparable Second Amendment injury from the Government Defendants’ enforcement of the Final Rule.
Under this inquiry, the Court merely answers whether the FPC members’ right to keep and
bear arms in self-defense is “‘threatened or in fact being impaired’” by the Final Rule.
Deerfield
Med. Ctr.
,
Moreover, the Final Rule
itself
flatly “violates the APA” and “must be set aside as
unlawful.”
Mock
,
Once infringement of a fundamental right has occurred, “it cannot be undone.”
Deerfield
Med. Ctr.
,
iii. Similarly Situated FPC Members Well beyond Mock and Lewis, the Court finds ample support in the attestations of FPC that many of its hundreds of thousands of members, by mere possession or intended acquisition of a single braced pistol, find themselves under similarly situated circumstances—that is, left to suffer the irrecoverable and constitutionally burdensome costs of compliance with the unlawful Final Rule, “or else” face criminal prosecution and imprisonment for exercising the fundamental right to keep and bear commonly used arms in self-defense. VanDerStok v. Garland , 633 F.Supp.3d 847, 857 (N.D. Tex. 2022) (O’Connor, J.).
FPC’s membership spans into the hundreds of thousands and across the entire United States. These hundreds of thousands of Americans became members for the sole expectation of accessing and relying upon the fruits of FPC’s non-profit assistance with acquiring, constructing, collecting, transporting, carrying, maintaining, and using firearms for self-defense and other lawful purposes. FPC is purely dedicatеd to providing these members with a wide array of legal, legislative, and regulatory advocacy services, as well as research, education, and outreach programs that assist with accomplishing these ends. The present suit is one such example. The bulk correspondence received by FPC concerning the Final Rule indicates that a broad swath of its hundreds of thousands of firearm-owning members are similarly situated to FPC’s participating member-Plaintiffs, Mock and Lewis. They are relying upon FPC to collectively vindicate their ability to maintain current possession of their braced pistols or acquire prospective braced pistols for lawful home- and self-defense applications.
Despite the Government Defendants’ contention of mere speculation, the ATF’s own administrative record lends additional credence to the sheer volume of affected FPC member- firearm owners. In its publication of the Final Rule, the ATF did not dispute comments from the concerned public noting that “millions of ‘braces’ are in use” and that braced pistols are “commonly used by millions of law-abiding Americans for various reasons.” Of course, the ATF was in no position to do so. According to the agency’s most frugal estimates, there are at least 3 million firearms and 1.4 million owners of braced pistols that the Final Rule has now swept under the onerous strictures of the NFA. The higher end of ATF’s estimates indicate that the Final Rule has consolidated 7 million braced pistols within the NFA’s enforcement thrust. The ATF further anticipates that the Government Defendants’ enforcement of the Final Rule will cause the destruction or forfeiture of over 750,000 firearms. And with the reported registration-compliance rate as low as it is (8%), it does not require any attenuated inferences for the Court to posit that this figure will likely be much greater in the absence of its equitable intervention.
Far from mere speculation, the Court has little trouble finding that there are likely hundreds
of thousands of FPC member-firearm owners similarly situated to Mock and Lewis, based on an
evaluation of the “whole record” of the ATF’s promulgation of the Final Rule.
Citizens to Preserve
Overton Park, Inc. v. Volpe
,
The Court concludes that Mock, Lewis, and thousands of other FPC member-firearm
owners have been relegated to either suffer the irrecoverable and constitutionally burdensome
costs of compliance with the unlawful Final Rule, “or else” run the risk of criminal prosecution
and imprisonment for engaging in the fundamental right to keep and bear arms for lawful self-
defense purposes.
VanDerStok v. Garland
,
2. Commercial FPC Members
The Court finds that Maxim Defense and other commercial FPC members face substantial threats of irreparable harm absent injunctive relief. Namely, they are threatened with: (i) permanent and nonrecoverable costs of compliance with an unlawfully issued regulation; and (ii) substantial financial injury leading to permanent closure of businesses. The Court finds that these irreparable injuries flow from the threat of enforcement of the Final Rule and are ongoing, vulnerable to intense exacerbation, and interdependent with a vast commercial supply-chain network. As the record currently stands, the Final Rule has taken and continues to take a toll on the ability of Maxim Defense to conduct its regular business and even survive as a business entity altogether. This commercial member of FPC is the second largest stabilizing brace manufacturer in the United States. In the Year 2022, Roughly 59% of the FPC member-manufacturer’s annual non-firearm sales consisted of stabilizing braces covered under the Final Rule, amounting to over $5 million in sales. Braced pistols consisted of approximately 3/4 of Maxim Defense’s annual firearm sales for that same year, totaling more than $5 million in sales.
Maxim Defense’s business has attained significant reputability within the veteran and Tier 1/special operations community. This is especially the case with community members who аre disabled and rely on the FPC member-manufacturer’s stabilizing braces and braced pistols to engage in safe and effective self-defense. Prior to ATF’s promulgation of the Final Rule, Maxim Defense vended its stabilizing brace products across all 50 States, complying with all applicable state-law restrictions. Maxim Defense sold its stabilizing braces through a variety of commercial channels: direct-to-consumer from its website; to original equipment manufacturers (“OEMs”) of firearms that deploy Maxim Defense braces on their own firearms; and to numerous firearms and firearms equipment dealers, distributors, and retailers across the country. Maxim Defense sold its braced pistols: direct-to-consumer from its website via transactions processed by federal firearms licensees (“FFLs”); and to numerous firearms and firearms equipment dealers, distributors, and other FFL retailers that carried Maxim Defense’s product lines for sale in their stores. Until promulgation of the Final Rule, Maxim Defense sold its stabilizing braces and braced pistols directly to consumers from its website. Because the braces themselves are not regulated as firearms, they can be shipped directly to consumers across every U.S. State. To the contrary, the FPC member-manufacturer’s sale of braced pistols requires transfer and shipment to FFL middle- men to execute the transactiоn. FFLs conduct mandatory background checks before delivering firearms to their end consumers. Maxim Defense’s customers now face criminal prosecution, imprisonment, firearm forfeiture, and a lifetime ban on firearm ownership under the NFA for possessing and using stabilizing braces manufactured by Maxim Defense to enhance their self- defense capabilities. Consumers are especially vulnerable to being criminally charged for constructive possession of an unregistered SBR under the Final Rule. By reclassifying 99% of all braced pistols in circulation (including those manufactured and sold by Maxim Defense) as SBRs subject to the NFA’s heavy regulatory barriers, the Final Rule has effectively eliminated any remaining consumer market for braced pistols as home- and self-defense weapons.
Maxim Defense sold a considerable proportion of its stabilizing braces to OEMs of firearms. OEM purchasers of Maxim Defense braces installed them onto their firearms to be sold to end markets. FPC member-manufacturer Daniel Defense had equipped its own DDM4 pistol model with Maxim Defense’s PDW stabilizing brace. Daniel Defense sold the product to end users as a DDM4 PDW model braced pistol. OEMs had sold firearms equipped with Maxim Defense braces throughout the United States. Since the Final Rule’s promulgation, however, every major OEM customer of Maxim Defense discоntinued their routine stabilizing brace orders. About a dozen of these OEMs attest that they will only resume their Maxim Defense orders if the Government Defendants are enjoined from any enforcement of the Final Rule against industry players and end consumers.
Maxim Defense vended its stabilizing brace and braced pistol products to seven different distributors. Those distributors subsequently sold their Maxim Defense inventory to firearms retailers and dealers. Those retailers and dealers subsequently sold their Maxim Defense inventory to end consumers across the country. Additionally, Maxim Defense directly sold its brace products to larger retailers. Those larger retailers, such as Modern Warriors located in St. George, Utah, subsequently sold their Maxim Defense inventory through their brick-and-mortar stores and e- commerce websites to end consumers throughout the United States. These streams of commerce have summarily evaporated on account of the ATF’s promulgation of the Final Rule.
i. Nonrecoverable Compliance Costs Maxim Defense easily demonstrates a substantial threat of irreparable harm in the form of nonrecoverable compliance costs.
“[H]arm is irreparable where there is no adequate remedy at law, such as monetary
damages.”
Janvey
,
The Final Rule has destroyed each of Maxim Defense’s primary channels of commerce. Maxim Defense had several outstanding orders that were canceled or held due to the impact of the Final Rule, and the company ceased all sales of its braced pistols on January 31, 2023. Maxim Defense has been unable to fulfill orders for hundreds of thousands of dollars’ worth of product that it can no longer transfer to buyers because of the Final Rule. The FPC member-manufacturer had manufacturing orders for thousands of braces that have been canceled and more than $1 million in materials that it purchased in anticipation of its sales in 2023 that it can no longer use for their intended purpose. Absent the Court’s intervening relief, Maxim Defense will simply not be able to sustain its business for any longer.
In the past six months, the Final Rule has devastated the financial stability of Maxim Defense. The FPC member-manufacturer’s gross revenues for 2022 totaled approximately $15 million. Through August 15, 2023, the company’s year-to-date revenue is an anemic $4 million. The company has lost roughly $3 million in year-over-year sales for braced pistol sales, and projects that the total loss for this product category will be over $5 million by the end of 2023.The company has lost approximately $3.4 million in stabilizing brace sales and expects this loss to exceed $4.5 million for the entire year. In a desperate attempt to mitigate these losses, one of the Maxim Defense founders injected $2 million of his capital into the company just to keep it from going under.
Maxim Defense orients its entire business model around the manufacture and sale of stabilizing braces and braced pistols. The ATF’s promulgation of the Final Rule effectively destroyed any viable end market for these self-defense products, which previously made up the overwhelming majority of the company’s revenue. The Final Rule shut down these end markets for self-defense firearms and equipment by subjecting braced pistols and stabilizing brace attachments to the onerous strictures of the NFA. The impact does not run down a simple linear supply chain, either. The Final Rule has decimated each of the separate channels connected within the complex web of commerce that Maxim Defense relied upon to sell stabilizing braces and braced pistols. The market for the products subject to the Final Rule has evaporated.
None of these exorbitant compliance costs are recoupable for FPC’s commercial members,
either, since the Government Defendants retain sovereign immunity from money damages in APA
actions.
See
In light of the above, Maxim Defense has little difficulty satisfying the irreparable harm
threshold. The FPC member-manufacturer is certain to continue enduring the “nonrecoverable
costs of complying with a putatively invalid regulation.”
Rest. L. Ctr.
,
Far more calamitous than even nonrecoverable compliance costs, Maxim Defense is threatened with existential financial ruin in the immediate instant without the Court’s equity.
A plaintiff’s “substantial financial injury” will be “sufficient to show irreparable injury”
where financial costs “threaten[] the very existence of [the plaintiff’s] business.”
Wages & White
Lion
,
For much the same reason as set forth in the Court’s assessment of nonrecoverable
compliance costs, Maxim Defense has cleared the irreparable-harm hurdle for substantial financial
injury by a wide margin. The FPC member-manufacturer is hanging on by a thread in its ongoing
efforts to dodge imminent bankruptcy on the horizon. Any suggestion on the part of the
Government Defendants of Maxim Defense’s speculation as to the survival of its business is, once
again, undermined by a quick glance at the administrative record.
See Citizens to Preserve Overton
Park
,
The exorbitant finаncial losses that the Final Rule continues to inflict upon the FPC
member-manufacturer are “so great as to threaten the existence of the [Maxim Defense’s]
business.”
Atwood Turnkey Drilling
, 875 F.2d at 1179. This is well above “sufficient to show
irreparable injury.”
Wages & White Lion
,
All in all, the Court concludes that Plaintiffs have each carried their burden of persuasion on a substantial threat of irreparable harm if not for a grant of interlocutory injunction.
C. The Balance of Equities and Public Interest Favor Issuing Injunctive Relief
The final two elements necessary to support a grant of injunctive relief—the balance of
equities (the difference in harm to the respective parties) and the public interest—merge together
when the government is a party.
Nken
,
The Court has concluded in this Opinion that Plaintiffs have each established credible
threats of irreparable injury absent relief from enforcement of the Final Rule. But at the other end
of the scale, there can be “
no
public interest in the perpetuation of unlawful agency action.”
Louisiana v. Biden
, 55 F.4th 1017, 1035 (5th Cir. 2022) (emphasis added). As it relates to
enforcement of the Final Rule against Plaintiffs, “neither [the Government Defendants] nor the
public has
any
interest in enforcing a regulation that violates federal law.”
All. for Hippocratic
Med. v. FDA
, No. 23-10362,
The controlling law of this case is that the Government Defendants’ promulgation of the
Final Rule “fails the logical-outgrowth test and violates the APA” and “therefore must be set aside
as unlawful” under the APA.
Mock
,
Having no equities to balance against those of Plaintiffs, the Court concludes that the public
interest is entirely undisturbed by a grant of the prayed injunction. To the contrary, it is “of highest
public importance that federal agencies follow the law,”
R.J. Reynolds Vapor Co. v. Food & Drug
Admin.
,
* * * *
Having considered the arguments, evidence, and applicable law, the Court holds that the relevant factors weigh in favor of granting preliminary injunctive relief to Plaintiffs FPC and members Mock, Lewis, and Maxim Defense. The Court proceeds by appropriately tailoring the injunction so as to provide Plaintiffs with the complete relief they are entitled to.
D. Scope of Injunctive Relief
The appropriate scope of injunctive relief is “dictated by the extent of the violation
established.”
Califano v. Yamasaki
,
Given the foregoing assessment into the respective irreparable harms for each Plaintiff and the balance of equities, the Court determines that the appropriate scope of the injunction is that which parallels the scope of the preliminary injunction issued by the Fifth Circuit in its May 23, 2023 order and clarified in its May 26, 2023 order. Reflecting the scope of relief previously afforded by the Fifth Circuit, the Court enjoins the Government Defendants’ enforcement of the Final Rule against individual Plaintiffs William T. Mock and Christopher Lewis and each of their respective family members. Reflecting the scope of relief previously afforded by the Fifth Circuit as well , the Court’s injunction extends to enjoin enforcement of the Final Rule against Maxim Defense Industries, LLC and all of its downstream customers whose interests it has represented since day one of this litigation. Reflecting the same scope of relief afforded by the Fifth Circuit to the Firearms Policy Coalition, Inc., the Court’s injunction extends to enjoin enforcement of the Final Rule against the Firearms Policy Coalition, Inc. and all of its members whose interests it has represented since day one of this litigation.
The Court declines Plaintiffs’ invitation to extend the scope of the injunctive relief
“nationwide.” Injunctive relief reflecting that previously afforded by the Fifth Circuit to
Plaintiffs is sufficiently limited to “not provide relief beyond the parties to the case,” while
also affording sufficient relief to meet each Plaintiff’s present needs.
Feds for Med. Freedom
, 63
F.4th at 387 (quoting
Trump v. Hawaii
,
* * * *
IV. CONCLUSION
The Court holds that each Plaintiff has demonstrated entitlement to preliminary injunctive relief against the Government Defendants’ enforcement of the Final Rule that the United States Court of Appeals for the Fifth Circuit determined to be invalid under the Administrative Procedure Act. For the foregoing reasons, the Court GRANTS the Motion for Preliminary Injunction.
Accordingly, the Court ORDERS that the Government Defendants—the Attorney General of the United States; the United States Department of Justice; the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco, Firearms and Explosives—and each of their respective officers, agents, servants, and employees—are hereby:
1) ENJOINED from implementing and/or enforcing against the Firearms Policy Coalition, Inc. and all of its members the provisions in27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful;
2) ENJOINED from implementing and/or enforcing against Maxim Defense Industries, LLC and any downstream customers of Maxim Defense Industries, LLC (including all direct consumer purchasers and all intermediary distributors, dealers, retailers, and OEM purchasers of Maxim Defense products, and any of their respective customers) the provisions in27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful; 3) ENJOINED from implementing and/or enforcing against William T. Mock and any of his family members the provisions in27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful; and
4) ENJOINED from implementing and/or enforcing against Christopher Lewis and аny of his family members the provisions in27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful.
The injunctive relief shall not extend to any individual prohibited from possessing firearms
under
The Court waives the security requirement of
Kaepa, Inc. v. Achilles Corp.
,
SO ORDERED this 2nd day of October, 2023 .
Notes
[1] Pls.’ Br. 6, ECF No. 36; Defs.’ Opp. 4–6, ECF No. 37.
[2] Defs.’ Opp 7–8, ECF No. 37.
[3]
Mock v. Garland
,
[4] Am. Comp., ECF No. 13.
[5] Id. at 5–6.
[6] Id. at 3–4.
[7] Id. at 4–5.
[8] See id.
[9] Id.
[10] Compl., ECF No. 1. Plaintiffs filed their Amended Complaint on February 7, 2023. Am. Compl., ECF No. 13.
[11] Mot. for Prelim. Inj., ECF No. 33.
[12] See generally Pls.’ Br., ECF No. 36.
[13] See Order, ECF No. 65.
[14] See generally Pls.’ Supp. Br., ECF No. 75; Defs.’ Supp. Opp., ECF No. 84; Pls.’ Supp. Reply, ECF No. 85; Br. of Amici Curiae , ECF No. 73.
[15] Unless otherwise noted, the facts presented herein are taken from ATF’s January 2023 Published Final Rule and Final Regulatory Analysis, Plaintiffs’ February 21 Brief in Support of their Motion for Preliminary Injunction (ECF No. 36), Plaintiffs’ August 18 Supplemental Brief in Support of their Motion for Preliminary Injunction (ECF No. 75), the Government Defendants’ March 10 Response in Opposition to Plaintiffs’ Motion (ECF No. 37), the Government Defendants’ September 1 Supplemental Brief in Opposition to Plaintiffs’ Motion (ECF No. 84), Plaintiffs’ March 17 Reply in Support of their Motion (ECF No. 38), Plaintiffs’ September 8 Supplemental Reply Brief in Support of their Motion (ECF No. 85), and legislative facts in the August 18 Brief of Amici Curiae in Support of Plaintiffs’ Motion (ECF No. 73)—as well as all attached or referenced exhibits, sources, and declarations therein. See generally Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 88 Fed. Reg. 6,478 (Jan. 31, 2023); ATF, RIN 1140-AA55, F ACTORING C RITERIA FOR F IREARMS WITH A TTACHED “S TABILIZING B RACES ”: F INAL R EGULATORY I MPACT A NALYSIS AND F INAL R EGULATORY F LEXIBILITY A NALYSIS (2023); Pls.’ Br., ECF No. 36; Pls.’ Supp. Br., ECF No. 75; Defs.’ Opp., ECF No. 37; Defs.’ Supp. Opp., ECF No. 84; Pls.’ Reply, ECF No. 38; Pls.’ Supp. Reply, ECF No. 85; Br. of Amici Curiae , ECF No. 73.
[16] To be sure, the Court has passed upon the question of whether Plaintiffs are likely to succeed on the merits of their Second Amendment claims, as it is no longer necessary to reach an answer in light of the Fifth Circuit’s determination that the Final Rule is already unlawful under the APA. But for purposes of assessing Plaintiffs’ overall entitlement to preliminary injunctive relief based on the remaining factors on remand, the Court finds it probative to discern the extent or degree to which the Final Rule threatens irreparable constitutional injury to Plaintiffs’ right to armed self-defense.
[17] The pistols subject to the Final Rule’s restrictions on stabilizing brace firearms, including those in the
possession of Mock and Lewis, are a subset type of handgun.
See, e.g.
,
Heller II
,
[18] See, e.g. , A Rare French & Indian War – American Revolutionary War Period British Military Pattern 1738 Heavy Dragoon Flintlock Pistol, Jordan, 1746 , T ORTUGA T RADING , https://tortugatrading.com/products/copy-of-a-rare-french-indian-war-american-revolutionarywar-period- british-military-pattern-1738-heavy-dragoon-flintlock-pistol-tower-1738 (last visited Oct. 2, 2023); Lot 3249: Silver Inlaid Kuchenreiter Flintlock Pistol with Stock Flintlock Pistol with Stock , R OCK I SLAND A UCTION C OMPANY , https://www.rockislandauction.com/detail/59/3249/silverinlaid-kuchenreiter- flintlock-pistol-with-stock (last visited Oct. 2, 2023).
[19] Because neither party raises the security requirement in