Colon v. Bureau of Alcohol, Tobacco, Firearms & Explosives

ORDER

MARY S. SCRIVEN UNITED STATES DISTRICT JUDGE.

THIS MATTER is before the Court for consideration of Plaintiffs' Motion for Preliminary Injunction, (Dkt. 21), and the responsive briefing in opposition thereto. (Dkts. 26 and 36) Upon consideration of all relevant filings, case law, and being otherwise fully advised, Plaintiffs' Motion for Preliminary Injunction is GRANTED in PART and DENIED in PART.

I. INTRODUCTION

A. Statutory/Regulatory Background

The National Firearms Act of 1934 (“NFA”), as amended 26 U.S.C. § 5801 et seq., was enacted “[t]o provide for the taxation of manufacturers, importers, and

dealers in certain firearms and machine guns, to tax the sale or other disposal of such weapons, and to restrict importation and regulation interstate transportation thereof.” National Firearms Act, Pub. L. No. 73-474, 48 Stat. 1236 (1934).

The NFA “regulates [certain] firearms . . . and requires the taxation and registration of [regulated] firearms by manufacturers, possessors, transferors, dealers, importers, and sellers.” United States v. Spoerke, 568 F.3d 1236, 1245 (11th Cir. 2009); (Dkt. 1 at ¶ 18). The NFA identifies eight categories of “firearms” that fall within its purview, those categories are:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e) (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device

26 U.S.C. § 5845(a).

“Neither pistols nor rifles with barrels 16 inches long or longer are firearms within the NFA definition, but rifles with barrels less than 16 inches long, known as short-barreled rifles, are.” § 5845(a)(3). See United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 507 (1992). Relevant here is the NFA's definition of “rifle” which is 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.” 26 U.S.C. § 5845(c).^[1] It is therefore widely accepted that the NFA regulates “short-barreled rifles”^[2] (“SBRs”) and “short-barreled shotguns” (“SBSG”) also known as “sawed-off shotguns.”^[3]

The NFA requires registration of SBSGs and SBRs in the National Firearms Registration and Transfer record. See 26 U.S.C. § 5841. The NFA imposes a $200 making tax for each NFA firearm made, 26 U.S.C. § 5821, and a $200 transfer tax for each NFA firearm transferred that is not within the “any other weapon” category. 26 U.S.C. § 5811. Importers, manufacturers, and dealers who deal in NFA firearms must pay a “special (occupational) tax” annually. § 5801. Any person who violates the NFA may be “fined not more than $10,000, or be imprisoned not more than ten years, or both.” § 5871.

The Gun Control Act of 1968 (“GCA”), as amended 18 U.S.C. § 921 et seq., was enacted to “provide support to Federal, State, and local law enforcement officials in their fight against crime and violence[.]” Gun Control Act of 1968, Pub. L. No. 90618, 82 Stat. 1213. The GCA defines “firearm” as “(A) any weapon (including a starter

gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3). The GCA also defines the terms “rifle” and “short-barreled rifle” expressly. Under the GCA, a “rifle” is “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 an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.” § 921(a)(7). Under the GCA, an “SBR” is “a rifle having one or more barrels less than sixteen inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches.” § 921(a)(8).

The GCA defines a “handgun” as “a firearm which has a short stock and is designed to be held and fired by the use of a single hand; and any combination of parts from which a firearm described in subparagraph (A) can be assembled.” § 921(a)(30). Neither the NFA nor the GCA defines the term “pistol.” Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations however define “pistol” as a:

weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).

See 27 C.F.R. § 479.11.

“ATF permits-but does not require-gun makers to seek classification letters from ATF prior to manufacturing a gun.”^[4] See Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 599 (1st Cir. 2016); see also 27 C.F.R. § 479.102(c) (“The Director may issue a determination (classification) to a person whether an item, including a kit, is a firearm”). On November 8, 2012, ATF received its first request for a classification letter related to a brace-equipped pistol.^[5] On November 26, 2012, ATF through its Firearms Technology Branch (“FTB”) concluded the “submitted forearm brace, when attached to a firearm does not convert that weapon to be fired from the shoulder and would not alter the classification of a pistol or other firearm.”^[6] From 2014 to 2017, ATF issued various open letters that contradict private classification letters concerning the appropriate classification of braced pistols (hereinafter, “brace-equipped pistols”). (Dkt. 22)

1. The Proposed Rule

Concerned with the inconsistent guidance that had been provided, ATF determined to undertake a formal review of its regulations.^[7] Thus, on June 10, 2021, ATF issued a notice of proposed rulemaking (“NPRM”) to seek notice and comment

on factors that ATF planned to consider “when evaluating firearms equipped with a purported ‘stabilizing brace'” to determine whether those firearms are “subject to regulation under the . . . NFA.” See NPRM, 86 Fed.Reg. 30,826-01, 2021 WL 2352274 (June 10, 2021). The factors were combined into what the NPRM identified as ATF Worksheet 4999. See id. ATF Worksheet 4999 proposed a point system in which ATF would assign a weighted value “to various characteristics of the fully assembled firearm as configured when submitted for classification.” Id. at *30,829. ATF Worksheet 4999 featured three sections with varying characteristics to evaluate firearms, those sections are Section I - Prerequisites (assessment of weight and length), Section II - Accessory Characteristics, and Section III - Weapon Configuration. Id.

The NPRM explained that a firearm would be assigned 0 to 4 points in Sections II and III.^[8] Id. Firearms that accumulated fewer than 4 points in both sections, Section II and Section III, would be determined not generally “designed to be fired from the shoulder”; therefore, those firearms would not constitute SBSGs or SBRs, “unless there [was] evidence that the manufacturer or maker expressly intended to design the weapon to be fired from the shoulder.” Id. Firearms that accumulated “4 points or

more in Section II or Section III [would] be determined to be designed and intended to be fired from the shoulder” and any such firearm would therefore be classified as an SBSG or SBR regulated by the NFA. Id.

In the NPRM, ATF evaluated three firearms using the worksheet. Id. at *30,835-43. One of the firearms evaluated was, “an AR-type firearm J with the SBA3 accessory” and a picture of that firearm is included below:

(Image Omitted)

Id. at *30,839. ATF determined the firearm pictured above would constitute an “SBR” according to ATF Worksheet 4999 for two reasons: (1) the firearm is a suitable host for a “stabilizing brace” because it weighs “89 ounces and have an overall length of 25% inches” and (2) the firearm scored 8 points in Section II based on the shoulder stock (1 point), rearward attachment (3 points), adjustable design (2 points), and flaps on the “Cuff-type” design (2 points). Id. at *30,840.

2. The Final Rule

On January 31, 2023, ATF published its Final Rule that abandoned the worksheet and point system, explaining that its decision was made, “[a]fter careful consideration of the comments received regarding the complexity in understanding the proposed Worksheet 4999 and the methodology used in the Worksheet to evaluate firearms equipped with a ‘brace' device.” See Factoring Criteria for Firearms With Attached “Stabilizing Braces”, 88 Fed Reg. 6,478-01, 2023 WL 1102552 (Jan. 31, 2023) [hereinafter, “Final Rule”]. The Final Rule did not adopt some key aspects of the approach proposed in the NPRM, specifically the Worksheet 4999 and its point...