New BATF ruling on stabilizing braces today

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  • JAL

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    . . .
    Court Listener Minute Entries for:
    Firearms Regulatory Accountability Coalition, Inc. v. Garland (1:23-cv-00024), District Court, D. North Dakota
    https://www.courtlistener.com/docket/66802066/firearms-regulatory-accountability-coalition-inc-v-garland/

    There is no entry whatsoever in all 82 of them (as of Friday May 26th) with a motion to add NRA as a Plaintiff. Nor is there any motion for leave by the NRA to file an amicus brief. In short, NRA is nowhere to be found anywhere in that lawsuit.
    Regarding the FRAC lawsuit in North Dakota . . .
    See the Minute Entries that I just browsed through (link to it quoted above). Item #80 is similar to the filing in the GOA lawsuit asking the court to take notice of the 5th Circuit Preliminary Injunction ordered on 23 May. There's a response to it by ATF (#81). Neither of them have a downloadable PDF but if you've read the other cases which have similar responses, it won't be much different. Item #80 is essentially the 5th Circuit injunction order with some text citing how it's applicable to this case. They have yet to file a notice on the subsequent 5th Circuit Clarification order. Note that other than the two individuals, and the states, the two companies are brace and braced pistol manufacturers. In addition, FRAC represents the firearms industry, including the two named companies. That makes the FRAC case a bit different from the FPC, SAF and GOA which are organizations representing gun owners who are members of them.
     
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    BiscuitsandGravy

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    Ok, so did anyone fall on the sword and watch the video? I’d like a bullet point list, please…preferably written in crayon.
    Sadly, but yes. I like these in the weeds videos, but I'm weird. :)

    I don't know of any other yt channels with the detail and clarity on 2A court issues. I don't care for the click-bait and hyperbole channels.
     

    JAL

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    Ok, so did anyone fall on the sword and watch the video? I’d like a bullet point list, please…preferably written in crayon.
    I'm watching it twice and making notes to post later, but would give a massive caution they're my interpretation of his missive. He redundantly repeats himself repetitively, reiterating the same points repetitiously. Will post later today if possible. What I've gleaned thus far is positive and good.

    That said, he is one of he most knowledgeable on Constitutional Case Law, especially as it applies to Second Amendment and SCOTUS. He connects dots with other significant and landmark cases that dealt with the same basic legal issues and principles, even though they're not about 2nd Amendment protected rights. I turn on a redundancy filter when listening to him.
     
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    76Too

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    I'm watching it twice and making notes to post later, but would give a massive caution they're my interpretation of his missive. He redundantly repeats himself repetitively, reiterating the same points repetitiously. Will post later today if possible. What I've gleaned thus far is positive and good.

    That said, he is one of he most knowledgeable on Constitutional Case Law, especially as it applies to Second Amendment and SCOTUS. He connects dots with other significant and landmark cases that dealt with the same basic legal issues and principles, even though they're not about 2nd Amendment protected rights. I turn on a redundancy filter when listening to him.
    Thanks in advance, sir. My ability to comprehend of ‘law stuff’ is basically non-existent and it really helps to have things interpreted to me by someone that understands it more.
     

    mcapo

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    East of Hoosier45 - West of T-dogg
    If NRA is somehow attached to this lawsuit in any meaningful manner, please enlighten me. I've been unable to unearth it in the trove of documents filed with and issued by the court.

    As posted up thread, there seems to be some press releases and some news coverage that the NRA backing includes funding and legal support of cases, particularly the FRAC v Garland case. Has your research indicated this to be incorrect? Posing this as a question to you; not being argumentative.

    Honestly, if I was a plantiff in one of these brace lawsuits, I would not want the NRA also named. They are too much a magnet for the left media but I'd be happy to take their money and counsel...


    As in the following press release: https://www.nraila.org/articles/20230209/nra-challenges-atf-brace-rule
     

    JAL

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    Mark W. Smith's Legal Geek-Speak 5th Circuit Preliminary Injunction and Clarification Analysis summary.
    This is my summary and notes on his epistle, and I've injected some of my own opinion and observations where I thought appropriate. There are a couple places in his video I didn't completely agree with opinion/analysis and have given my thoughts on it where it occurred. Yes, it's long, which matches his lengthy video. It's why I broke it up into bullet sections.

    IANAL Disclaimer:
    I’m not an attorney, nor is anything here to be considered attorney-client advice. Take the information and opines, form your own opines, and make your own decisions about what you will do regarding Pistol Braces.

    I’ve broken this down into most of the topic sections Mark Smith created in his video. He has a habit of meandering some and coming back around to rehash something already discussed. I’ve eliminated as much of that as I can without losing some important details. Mark doesn’t assume someone has watched many of his videos. Thus he explains the same concepts and principles, and cites the same case law in many of them.

    I may edit this for typos, etc. over the next couple days. Wrote this quickly to post it, and my eyes are very tired.

    Before the Notes on Smith's Video -- Interlocutory Appeals Explained by a Layman:

    Normally a case (criminal or civil) will be completed to final judgement before an appeal is made, and there is a limited amount of time allowed to file a "notice of appeal", after which the right to appeal is lost. Resurrecting that right later can require an Act of God, especially in a civil case. How many days depends on court jurisdiction, and that jurisdiction's rules. One can file a notice of appeal to a higher court before final judgement, and that is called an "Interlocutory Appeal". The circumstances for filing one had best be quite extraordinary. Higher courts are loathe to deal with interlocutory appeals as they would be meddling in a lower court's business before it's finished. In addition, their dockets are already severely overloaded with normal appeals. If they routinely accepted them, they'd have more interlocutory appeals on their hands than the Starship Enterprise had Tribbles. A higher court accepting one is rather rare; they're almost always refused. If there's nothing approaching a very damn good reason for it, the refusal is typically accompanied by an admonishment. An interlocutory appeal is how the FPC case landed in the 5th Circuit for a Preliminary Injunction. Currently that is the only reason it's there, and that is the only issue the Circuit Court is dealing with (for now). The District Court still has the case (other than that) and it's on hold until the Preliminary Injunction is dealt with, after which the District Court should resume with the case. The lead attorneys and their minions are all tied up with Prelim Injunction business in the 5th Circuit which should run into early July.

    On to my notes about Mark Smith's Video . . .
    • Three Key Cases
      • Mock v Garland which is the primary subject of Mark’s epistle
        Mark considered this currently the most important as it was further along than the others and appeared to be continuing to move faster. District Court had denied Motion for Preliminary Injunction precipitating the Interlocutory Appeal to the 5th Circuit for a Preliminary Injunction from the Circuit Court.
      • Texas & GOA in Southern District of Texas (discussed later)
      • FRAC v Garland in District of North Dakota (discussed later)

        My take on this (see conflation of GOA with SAF cases below) is four key cases. The fourth one is the SAF case in a different division of Texas’ Northern District.

    • Mock v Garland (brief summary of how we got to 5th Circuit Injunction)
      Their judge in the Northern District of Texas denied motion for a Preliminary Injunction which precipitated the Interlocutory Appeal to 5th Circuit for a Preliminary Injunction. Note that there are two Court Listener entries for his case now. One is at the District Court level and the other is for the 5th Circuit Court of Appeals as they’re two different courts.
      (A different Northern District judge in a different division has the Second Amendment Foundation lawsuit.)

    • 5th Circuit Motion Panel Injunction
      Short, very tersely worded injunction was issued by Circuit Court Motion Panel (Haynes, Engelhardt & Oldham) on May 23rd. This is a rotating panel of “on call” circuit court judges for emergency and time urgent motions, versus the Merits Panel of three (most likely different) judges hearing and deciding the merits of the case. This is why the initial injunction was terse.

    • Motion to Clarify Injunction’s scope for “Plaintiffs”
      FPC made immediate motion to clarify definition of “Plaintiffs” requesting it include FPC members, and Maxim Defense customers, plus family members residing with them – to prevent DOJ charging resident family with “constructive possession” because they may have access to a braced pistol without the “member” or “customer” present. The Court’s Merits Panel addressed this motion and issued the Clarification with one judge dissenting in part on Friday, May 26th.

    • Order Language
      FPC and Maxim Defense wanted to ensure FPC members and Maxim Defense’s customers were covered by the injunction. Clarification Order states that is correct. They are protected.

    • Family Members
      Language regarding Family Members is to protect them from being charged with “Constructive Possession” simply because they may have access to the braced pistol(s) owned by an FPC member or Maxim Defense customer.

    • Texas, Louisiana and Mississippi (5th Circuit)
      The 5th Circuit has jurisdiction over those three states. What if someone lives in one of those states but isn’t a member of FPC (or a customer of Maxim Defense with one of their pistols)? Mark's answer is probably, by implication, but not with complete certainty because the clarification was issued by the Merits Panel that will hear the case. The implication from the injunction is the lawsuit will likely succeed on its merits. If it does with a permanent injunction, it will apply (unless expanded nationally), to all who reside in those three states. Therefore, DOJ bringing an indictment would be problematic. I believe this is a B-I-G stretch on Mark’s part. Someone not a FPC member or a Maxim Defense customer that’s indicted might get charges dismissed based on this existing preliminary injunction. IMHO it’s iffy; a roll of the dice with a good, very persuasive and expensive defense lawyer. The government would repeatedly harp on the criminal defendant not being one of the named plaintiffs. I almost always agree with Mark, but this had me wondering given some other cases DOJ has pursued, such as the dude in Dayton Ohio. He went through an entire trial a few years ago with ATF deliberately measuring the length of pull improperly on his pistol, and then applying a completely unpublished “maximum length of pull” standard for a pistol that nobody but ATF knew about. This emerged during trial thanks to a diligent attorney. Trial went to jury which acquitted him in under an hour, but he paid a fortune in legal fees. Clearly being a “Named Plaintiff” is cut and dried.

    • Circuit Court's Merits Panel
      (I’ve been unable to determine who the Merits Panel judges are)
      The Clarification Order is stronger and bodes better for a final outcome in the 5th Circuit, having been issued by the Merits Panel that will hear the case, especially having granted plaintiff request to clarify it that includes members and customers plus resident family.

    • Mark W. Smith Hasn’t Read All the Papers
      Mark states he hasn’t been able to read all the filings, briefs and court instructions making another disclaimer about this all being based on what he has read. (Neither have I as not all are available free.)

    • FPC Favorable Language and Bump Stock Language Lesson
      Language used in clarification is very favorable for all FPC members. The judge in FPC’s “Bump Stock” case in District of Columbia a few years ago issued a very temporary injunction, and used the term “bona fide members” referring to FPC’s membership. Gave wiggle room for DOJ to potentially make a wild-ass claim that merely being an “FPC member” isn’t the same as being a “bona fide FPC member”. Not a stretch for me to believe DOJ might do that. I’ve seen the twisted crap attorneys attempt in courtrooms just to see if they can get away with it. I can easily imagine DOJ getting the court embroiled in litigating whether someone’s membership is a “bona fide” one or not. The language in this injunction's clarification is cleaner.

    • DOJ Could Argue Anything
      Regarding a legitimate defendant claim about being covered by the injunction, via FPC membership, or being a Maxim Defense customer, it would be very difficult for DOJ to dispute it, but not beyond them to attempt it with some cockamamie scheme and spaghetti tangled argument. (See previous bullet.)

    • Texas AG & GOA Case in Southern District Texas (I believe some of this should be the SAF Case in Texas’ Northern District)
      I believe Mark conflates this case with the SAF lawsuit that also received an injunction. Mark talks about an injunction that should be expanded to cover members, etc. in the same manner as the Mock Injunction Clarification – if it doesn’t already do so. No injunction has been issued yet in the GOA case which is why I believe he’s conflated the two. Nevertheless, if the Southern District issues an injunction in the GOA case, I would anticipate it being essentially the same as Mock’s (FPC) and SAF’s. GOA has filed notices to their court about FPC’s very relevant 5th Circuit injunction and clarification. My read on the SAF injunction is that it’s the equivalent of FPC’s for its plaintiffs. Hopefully we’ll see an injunction forthcoming in this GOA case next week.

    • Who are the Customers and are Maxim’s Future Customers Covered?
      Customers” refers to Maxim Defense. “Members” refers to FPC. Clearly Maxim’s past customers are covered. The question arises whether it covers future ones. Not doing so wouldn’t make sense as Maxim Defense is a plaintiff because they’re losing business and could be bankrupted. They get no business or revenue to stay in business if they cannot sell to future customers. Allowing them to sell but not allowing anyone to buy would be absurd. Text in plaintiff reply papers discusses how lack of business and revenue has forced employee layoffs and could bankrupt them. Thus the injunction as clarified would logically support relief for this.

    • Is Buying (Any) Maxim Defense Merchandise Sufficient?
      Does “Customer” also include someone who has bought anything, or buys anything from Maxim Defense, or only pistol braces and braced pistols from them? Does someone only need to buy a hoodie, T-shirt or ball cap to become a “protected customer” under the injunction? Mark states someone could argue that as “customer” isn’t defined or limited. My take on it is such an argument wouldn’t gain much traction in a court. A brace or braced pistol bought from Maxim Defense would be protected. A pistol with brace from some other company or dealer wouldn’t be even if they owned a Maxim Defense product. So when ATF shows up, the perp won’t be charged for having the Maxim Defense pistol and brace, but will be charged for having the other pistol with the Magpul brace on it.

    • Footnote 1 in Clarification Order Is Interesting
      The footnote about the dissenting judge in the Clarification Order gives some sense about the intent of the other two judges (in the majority) in the order issued. The dissenter didn’t want to expand the definition of “plaintiff” to include Maxim Defense “customers” in particular. It states:

      “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.”

      One can construe from this that the majority in the Clarification Order intend for Maxim Defense to sell products with those customers protected, and by proper extrapolation, for FPC to continue to take on new members who will be covered by the injunction. Allowing new customers without allowing new members wouldn’t be logical or consistent. A dissenting judge’s statement can often give insight into what the others in the majority are thinking and their intentions. This ties in with two bullets above and discussion about FPC members

    • Orders v Opinions Defined
      Mark defines the difference between the two. An “Order” is an instruction from the court to one or more of the parties involved, which must be obeyed. Failure to do so is “Contempt of Court” and depending on the nature of it (when and where), could be Direct or Indirect. An “Opinion” is an explanation or rationale for an “Order” to aid in understanding the court’s intent. In my own experience, it helps remove ambiguity and serves to prevent someone from twisting the meaning of something around in an Order to try to circumvent its intent (some attorneys will do it thinking they’re “clever”; usually pisses off the judge). Not much opinion in the Injunction or subsequent Clarification. Footnote 1 in the Clarification is about it, and expresses the opinion of the dissenting judge. Almost moved this bullet to the top, but Footnote 1 in the Clarification Order is relevant to his having introduced the concept here.

    • One Judge (Merits Panel) Objected to Clarification
      Rehashes previous bullet about Footnote 1

    • Who is Maxim Selling to in Future?
      Rehashes previous bullet about who Maxim “Customers” are and whether Future Customers are covered by injunction in previous bullet about it above.

    • North Dakota Case (FRAC Plus 25 State AGs Lawsuit)
      This one is important for a point I had missed about it in previous postings and Mark pointed it out with the impact it could have nationally. FRAC represents manufacturers, importers, distributors and retailers in the firearms industry, not individual firearm owners like GOA, FPC and SAF do. Obviously this lawsuit is very concerned about loss of revenue and business possibly going bankrupt. What I had missed was the importance and relevance of 25 State Attorneys General being named plaintiffs, half the states in the country. If a preliminary injunction is ordered for the “Named Plaintiffs” in this lawsuit, it’s applicable to all the residents in each of the 25 states represented by their Attorneys General. The AGs represent their state residents in an official capacity, similar to FPC representing its members. Such a preliminary injunction would take half the country completely out from under the Pistol Brace Rule. Normally a State AG will file an amicus brief in a lawsuit of this type, not join it as a plaintiff. Joining one is much more significant as the AG speaks for the state’s residents and any remedy such as an injunction or restraining order applies to the state’s residents.

    • Could DOJ Get Membership Lists?
      Not likely DOJ would subpoena FPC member list for constitutional reasons, but always possible. It would violate 1st Amendment “Right of Free Association”. Longstanding case law prohibits government demanding private organization member and donor lists (notwithstanding disclosures required for political campaign donors to the FEC). DOJ would most likely argue they require membership rosters to ensure they’re not indicting members protected by the injunction(s), just to see if that pasta will stick to the kitchen wall. Unconstitutional.

    • Unconstitutional Conditions Doctrine
      Another legal geek principle explained. One I hadn’t heard before but makes sense. Directly related to the FPC membership roster (and those of the other organizations), this general doctrine holds that one cannot be required to forfeit one protected right in order to preserve another protected right, e.g. in this case forfeiting a 1st Amendment protected right (Free Association) to preserve a 2nd Amendment protected right.

    • Don’t Break the Law
      Mark’s standard disclaimer that he hasn’t read everything and is giving his opinion about what he has reviewed, and therefore nobody should take anything as “attorney-client” legal advice. Usually gives this at beginning and end, but it was in the middle for some reason. I moved it here. :)
    EDITS:
    Attached PDFs of the 5th Circuit's Motions Panel Preliminary Injunction and the Merits Panel Clarification Order on the Injunction.
    Added explanation about what an Interlocutory Appeal is and why they're very rare.
     

    Attachments

    • Mock_v_Garland_Preliminary_Injunction_Order.pdf
      76.3 KB · Views: 1
    • Mock_v_Garland_Order_on_Motion_for_Clarification.pdf
      81.8 KB · Views: 1
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    JAL

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    So......can I keep my brace? ..if I had one....Will I need to register it?
    ...if I had one?/?

    I dont do legal E stuff well.
    • Are you a member of Firearms Policy Coalition?
    • Are you a member of Second Amendment Foundation?
    • Did you buy your brace and/or the braced pistol from Maxim Defense?
    • Did you buy your brace and/or the braced pistol from Rainier Arms in Auburn, Washington?
    • Are you one of the individuals named as plaintiffs in Mock v Garland or Rainier Arms LLC v BATFE? (and I daresay you're not)
    Unless your answer to at least one of them is "Yes", you're not a "Named Plaintiff" in the FPC & Maxim Defense lawsuit, or a "Named Plaintiff" in the SAF & Rainier Arms lawsuit, and therefore the two Preliminary Injunctions most definitely do not stop ATF/FBI showing up at your humble abode and killing your dog. Even if you can answer "Yes" to one or more of them, AFT/FIB may still show up and euthanize Fido. I don't recommend any of the following regardless of your answers to the above questions:
    • Carrying a braced pistol around in public (open carry)
    • Taking one to a range and blowing a thousand rounds through it, or even one magazine
    • Posting photos of it on Facebook, Twitter, Reddit or Snapchat, or other online photo storage sites, e.g. Photobucket, Flickr, etc.
    • Making videos of it and posting them on YouTube, Instagram or TikTok
    It could attract unwanted attention from the ever vigilant, always watching AFT that is diligently saving all of Democracy from the nefarious, despicable seditionists, insurrectionists and domestic terrorists. I've little doubt there are Glowies on this forum.

    AFT Agent Eyes Only 1024.jpg

    It's important to remember that Preliminary Injunctions (and Temporary Restraining Orders) are not permanent or a final adjudication. They're issued during the litigation, typically pending final judgement in the court that issued it, but it can be lifted (aka vacated) before that. This occurred in Illinois during their "Freedom Week" when a Preliminary Injunction was issued and then vacated a week later in the lawsuit challenging Illinois' PICA law banning semi-auto firearms and magazines. Regarding Pistol Braces, the 5th Circuit will be proceeding with motions, briefing filings, and eventually Oral Arguments throughout June regarding the Preliminary Injunction after which it could be continued as-is pending a final judgement in 5th Circuit, modified and then continued, or vacated and ended.

    EDIT:
    I also want to remind everyone about the Rule of Lenity, the legal principle that in the face of ambiguity in vague or nebulous statutes, the interpretation of them for criminal law and proceedings always sides with the defendant, and never with the state. People can nitpick the precise meaning of "member" or "customer" to death, even after the Clarification Order, with a million "what if" questions. It's impossible to codify a law or court order that can cover every single conceivable "what if" condition or situation an active imagination can dredge up. Such an effort would fill a dozen 5-drawer file cabinets and still not encompass everything. The Rule of Lenity will always favor the individual the state is attempting to prosecute.
     
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    JAL

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    As posted up thread, there seems to be some press releases and some news coverage that the NRA backing includes funding and legal support of cases, particularly the FRAC v Garland case. Has your research indicated this to be incorrect? Posing this as a question to you; not being argumentative.

    Honestly, if I was a plantiff in one of these brace lawsuits, I would not want the NRA also named. They are too much a magnet for the left media but I'd be happy to take their money and counsel...


    As in the following press release: https://www.nraila.org/articles/20230209/nra-challenges-atf-brace-rule
    I've done some digging through the entire court Minute Entries (which show all the filings, hearings, orders, etc.) in the FRAC v BATF lawsuit (District of North Dakota). Did some digging through all the financial disclosures required for 501(c)(#) non-profits. I believe NRA is a c4 and FRAC is a c6, primarily the IRS 990's.
    • Nothing to be found regarding NRA or NRA-ILA in any of the lawsuit minute entries and their associated available documents. Not in the original "named plaintiff" listed with detail about who they are in the initial complaint. No motion made later to add NRA or NRA-ILA as a plaintiff. No motion for leave from the court to file an amicus brief by NRA or NRA-ILA (which would be followed by an entry for the the brief if it were granted).
    • Went through the other six Pistol Brace Federal Lawsuits and similarly found nothing regarding NRA/NRA-ILA
    • Nothing to be found in FRAC or NRA/NRA-ILA financial disclosures required by IRS regarding their revenue and expenditures for IRA or IRA-ILA contributing anything of value to FRAC, or any other party to the lawsuit.
    This morning I called NRA, transferred over to NRA-ILA and asked the person answering to explain specifically how NRA is participating in the lawsuit as they're not a named plaintiff and haven't filed an amicus brief. The individual didn't know the answer but has emailed the NRA legal team for specifics. He's hoping to get an answer back today.

    I can find all sorts of news articles about NRA suing ATF referencing the FRAC lawsuit, but still cannot find anything of substance regarding any participation beyond NRA being a public cheerleader sitting on the sidelines. I will post again when I get an answer from NRA and hopefully it's more than Motherhood and Apple Pie with details . . . which I made clear to the dude I talked to I expected . . . details on what NRA is doing of substance beyond cheering for them.
     
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