“The ATF, through its Final Rule, robbed Plaintiffs of their property for a number of years, under threat of imprisonment, felony, and fine,” attorneys Stephen Stamboulieh and Alan Beck argue in a Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs filed Friday in the United States District Court for the District of Columbia. “That this Court, or any other court, agreed with the Defendants that the Final Rule was a ‘best interpretation’ or a ‘reasonable’ interpretation’ is of no moment. At the end of the day, the Supreme Court held that ATF ‘exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns.’”
They were referring to the bump stock case where they represented this correspondent that began with a complaint filed in December 2018 and ended when ATF was legally compelled to surrender the property back in August 2024.
The reply was precipitated by The Bureau of Alcohol, Tobacco, Firearms and Explosives filing a Memorandum in Opposition to Plaintiffs’ Motion for Attorneys’ Fees on Feb. 24. (This column had previously reported that ATF had been ordered to pay attorney fees. That was my erroneous interpretation. The judge’s order was “that the plaintiffs shall file any motion for attorney’s fees.”)
ATF is claiming, among other things:
- Plaintiffs are not entitled to fees and costs … because ATF’s position was substantially justified.
- Numerous favorable judicial decisions show that ATF’s position was substantially justified.
- ATF’s change in position over time does not undermine the reasonableness of the government’s position.
- The Supreme Court’s determination that the statutory language is unambiguous has no bearing on the substantial justification analysis.
- Any costs awarded to plaintiffs should be limited.
In other words, the facts that ATF first said bump stocks were legal, then ruled them illegal (against the advice of their own firearms expert and chief counsel), then ruled them legal again, then ruled them illegal, and were finally forced to rescind that rule, should have no bearing on citizens trying to keep from having their lives destroyed by capricious bureaucrats who mandate by diktat and can’t make up their damn minds. Ditto that various cases had been ruled on by activist Democrat-appointed judges who brought their own legally indefensible biases to the bench… And forget what the Supreme Court says. If you want to fight for your rights against the unlimited power and treasure of the state, you’re on your own.
That’s “the reasonableness of the government’s position.”
And they’re not done in justifying that, and in introducing a contention they have not proven to the court (but hope it doesn’t notice):
“On October 1, 2017, several rifles with attached bump stocks were used to commit the deadliest mass shooting in United states history at a concert in Las Vegas, Nevada. Hundreds of rounds of ammunition were rapidly fired by the perpetrator at a large crowd, killing 58 people and wounding approximately 500. ATF’s decisions included one classification of a device submitted by the same manufacturer as the bump stocks used by the Las Vegas perpetrator.”
The whole rule was predicated on that assumption. Everybody knows that right…? Or do they?
Were the judges who ruled for the government in other bump stock cases informed of all relevant information (and if they had been, would it have made a difference)? Were they (and is Judge Dabney L. Friedrich, who will rule on attorney fees) aware that per ATF’s own response to a Freedom of Information Act Request, the Bureau was “not allowed to physically examine the interior of the weapons on-scene for machinegun fire-control components or known machinegun conversion devices such as Drop-In-Auto Sears, Lightning Links, etc.”
And there were more confusing and conflicting admissions:
An ATF Firearms Enforcement Officer … has not yet been provided access to conduct a full examination.
“…the ATF FEO has not been able to conduct a full examination of them at this time.”
“I CANNOT FURTHER COMMENT ON THE BUMP-TYPE DEVICES RECOVERED IN THIS CASE AT THIS TIME AS THE PROCESSING AND ASSESSMENT OF EVIDENCE ONGOING, INCLUDING WHETHER OR HOW THE FIREARMS WITH BUMP STOCKS WERE USED” [capitalization and bold text emphasis in original.]
As firearms designer Len Savage noted:
“ATF did not disclose that they had not examined the firearms prior to promulgating the rule. And now that the comment period is closed … that information cannot be used in a court challenge because it was not submitted prior to the closing of comments.”
So, what am I saying, that bump stocks were not used when we “know” recovered guns had them attached? No, I’m not trying to imply anything. I’m merely repeating the government’s words when they said they didn’t inspect the recovered weapons to see if they had been modified internally.
And I’m saying if they later were inspected, that evidence has not been presented to this court. Instead, ATF has made a claim to the judge that it expects a favorable ruling from based on an assumption instead of on documented evidence. One hopes that this information will find its way to the judge and that if such evidence exists, she will require it to be presented – and failing that, consider fraud upon the court charges.
One also hopes that this information finds its way to Kash Patel, the new Acting Director of ATF in addition to his FBI duties, along with the questions: “Do you really find any of this ‘reasonable’?” and “If you really intend to change the system to favor citizen rights, why not call off your dogs and pay the attorneys for work a just administration that respects the Constitution would never have required them to undertake?”
ATF’s Memorandum and our reply is embedded below:
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
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