A disable shooter holds a pistol-brace equipped AR-15
Disabled veteran Omar "Crispy" Avila holds an AR-15 equipped with a pistol brace / Richard King

Fifth Circuit Panel Says Pistol-Brace Ban Block Extends to Gun Group’s Members, Gun Company’s Customers

The ATF can’t arrest members of the Firearms Policy Coalition (FPC) or customers of Maxim Defense for possession of unregistered pistol-brace-equipped guns, according to a new federal court order.

A three-judge panel on the Fifth Circuit Court of Appeals issued a new clarification on Friday of its earlier injunction against enforcement of President Biden’s pistol-brace ban. The court sided with FPC’s reading of the injunction and said the order extends to all members of the gun-rights group as well as people who bought braced guns from fellow-plaintiff Maxim Defense.

“This clarification is granted essentially for the reasons concisely set forth in the May 25, 2023, Plaintiffs-Appellants’ Reply to Their Opposed Motion for Clarification of Injunction Pending Appeal,” the court wrote in Mock v Garland. “There, the appellants acknowledge that ‘[a]lthough a nationwide injunction would have functionally addressed the question of scope, on which Plaintiffs now seek clarity, Plaintiffs understand that one was not given . . . . Instead, Plaintiffs merely request clarification on whether their reading of the term ‘Plaintiffs’ to include the customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition (‘FPC’) have represented since day one of this litigation is correct.’ That reading is correct. Also as requested, the term “Plaintiffs in this case” includes the individual plaintiffs’ resident family members.”

The ruling establishes that the injunction, issued just days before the deadline to register braced guns or face potential federal felony charges, is meant to be read in the most expansive way possible. That may directly impact a second injunction against the ban issued by a federal district judge yesterday, which was worded in the same way as the panel’s order. That increases the difficulty the ATF will have in trying to enforce its new rule since scores more people will be immune from prosecution as the case proceeds.

The issue stems from Biden’s decision to try and reclassify pistol-brace-equipped guns as short-barrel rifles and shotguns, subject to the rules of the National Firearms Act of 1934 (NFA). That left millions of owners with the options of either dismantling, destroying, or registering their guns by the end of this month. Anyone who refuses to comply could be subject to federal felony charges for possessing an unregistered NFA item.

As soon as the rule was finalized, numerous gun-rights groups filed suit against the rule. They challenged its constitutionality under the Second Amendment, arguing the guns are protected because they are in common use for lawful purposes. And they also challenged the authority of the ATF to reclassify the braced firearms without new legislation from Congress under the Administrative Procedures Act, a legal strategy that has borne fruit in challenges to the bump stock ban.

Cody J. Wisniewski, a senior attorney at FPC, said the clarification confirms the ATF will be severely limited in how it can try to enforce the ban while the court cases against it play out.

“We’re incredibly excited to report that the Fifth Circuit has clarified that our injunction covers FPC’s members and Maxim Defense’s customers, as we have always argued for,” he said in a statement. “This relief will offer protection while we continue to fight against ATF’s overreach.”

The panel’s order also noted it would not go beyond issuing an injunction for plaintiffs directly named in or implicated by the case because that “arguably would be tantamount to a nationwide injunction.” The order explained the panel was not unanimous in its decision either.

“One member of the merits panel would not clarify the motion panel’s order to extend the injunction to ‘customers,'” the court wrote in a footnote. “The motion panel’s injunction was limited ‘to the Plaintiffs in this case.’ There is no authority in the motion panel’s order to extend the injunction to an infinite number of non-parties to this case on the theory that, for full relief to be afforded to the plaintiffs, the plaintiffs must be permitted to sell products to an undefined set of downstream purchasers. Full adversary briefing will assist us to confirm our court’s equitable powers under the Constitution.”

The court reiterated that the injunction and its scope do not reflect where the panel might come down on the merits of the case against the brace ban.

“Nothing in this order is to be construed as a comment on the merits of any issue that this panel may ultimately address,” it wrote in the order. “The limited purpose of this clarification is to preserve the status quo ante to provide what the agency defendants term ‘complete relief’ to the parties and persons within the reasonable scope of the motion panel’s injunction pending appeal.”

The Department of Justice, which declined to comment after the initial injunction was released, did not respond to a request for comment on the clarification.

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Created by potrace 1.16, written by Peter Selinger 2001-2019


Created by potrace 1.16, written by Peter Selinger 2001-2019

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