DOJ’s Bump Stock Appeal Could Have Much Broader Implications

If the US Supreme Court upholds a federal appeals court ruling that the ATF lacks the authority to regulate “nonmechanical” bump stocks, that decision could have broad consequences for other federal agencies charged with regulatory enforcement.

The US Justice Department is asking the justices to overturn the US Court of Appeals for the Fifth Circuit’s January decision that the Bureau of Alcohol, Tobacco, Firearms, and Explosives doesn’t have that specific regulatory authority because it’s not clearly spelled out by statute.

A majority of the en banc panel, agreeing to assume the statute’s ambiguity, invoked the rule of lenity, rather than deferring to ATF’s otherwise reasonable interpretation of it.

Carrying that reasoning forward could invite similar challenges whenever arguably ambiguous criminal statutes are enforced.

Dru Stevenson, a professor at South Texas College of Law, said he was surprised that the agency didn’t delve more deeply into the issue in its cert. petition filed with the high court on April 6.

“I think they could have leaned more heavily on the fact that the Fifth Circuit is applying the rule of lenity in an unprecedented way,” he said.

The rule of lenity requires courts to resolve ambiguity in criminal statutes in favor of defendants. But it only applies where the ambiguity is “grievous,” or so significant that after exhausting traditional interpretative tools the court must “simply guess” as to what conduct was targeted. The DOJ, in its filing, says that isn’t the case here.

And it isn’t just criminal enforcement matters in play. A Supreme Court decision on the lenity issue could have broad implications for both civil and criminal regulatory enforcement across industries, James Segroves, a partner at Reed Smith LLP, said.

Segroves pointed to the Sixth Circuit’s March 28 decision in United States ex rel. Martin v. Hathaway, a False Claims Act case in which the court said the rule of lenity supported its narrow reading of the underlying statute. Although a civil proceeding, the FCA theory was based on alleged violations of the criminal Anti-Kickback Statute.

‘Strange and Unprecedented’

Stevenson called the Fifth Circuit’s approach to lenity “strange and unprecedented.”

Among other things, most cases applying the rule of lenity involve statutes that are genuinely confusing and poorly worded, where a citizen arguably might not know their conduct fell under the statute, Stevenson said.

“No one could argue that here, because the ATF rule is crystal clear about what is being banned,” he said.

The government has disclaimed reliance on so-called Chevron deference, the principle that courts ought to defer to agencies’ subject matter expertise, in appeals over the ban. Its cert. petition says the court need not consider whether the rule of lenity might apply because in the agency’s view, the statute plainly includes bump stock devices, mechanical or not.

“The government knows Chevron deference is a flashpoint at best, and particularly vulnerable in criminal cases—so it’s pressing an even broader ‘agency knows best’ theory that, it hopes, will get to the same place without the Chevron baggage,” Lisa Mathewson, a Philadelphia-based white collar defense attorney said.

Circuit Split

The Fifth Circuit is the first and only circuit to say ATF lacks the authority to ban bump stocks. The Sixth, Tenth, and D.C. circuits have declined to invalidate the bureau’s bump stock ban, albeit for varied reasons and without consensus that the statute is clear.

Thirteen of the Fifth Circuit’s 16 judges agreed that an act of Congress is required to prohibit bump stocks, but their specific grounds varied. Eight of the 13 judges said they would reverse the prior three-judge panel and lower court rulings upholding the ban, because the law unambiguously fails to cover nonmechanical bump stocks. Assuming an ambiguity, 12 of the 13 judges said that they would have reversed on rule of lenity grounds.

The dissent, authored by Judge Stephen A. Higginson and joined by judges James L. Dennis and James E. Graves Jr., adopted the reasoning of the original three-judge panel decision and criticized the majority’s reliance on lenity.

The Supreme Court “has been clear that we do not invoke lenity just because ‘multiple, divergent principles of statutory construction are available,’” Higginson wrote.

Michael Cargill, the Texas gun shop owner who brought the lawsuit challenging the ban, is represented by the New Civil Liberties Alliance.

NCLA’s president and general counsel Mark Chenoweth said in an email they were still studying the government’s cert. petition and that it would be premature to say exactly how they plan to respond. He said, however, that it wasn’t too soon to say he was “dismayed to see the government’s utterly misleading presentation regarding how bump stocks function.”

“They do not work in the manner the cert. petition falsely claims they work,” Chenoweth said.

The case is United States v. Cargill, U.S., No. 22-976, certiorari petition 4/6/23.