SB Tactical pistol stabilizing brace
Travis Pike for TTAG
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For those of you keeping score at home, back in May, a three-judge panel of the Fifth Circuit Court of Appeals issued an emergency injunction blocking the ATF from enforcing its new rule effectively banning pistol stabilizing braces. This was after a lower court judge concluded that the plaintiffs weren’t likely to prevail on the merits of the case.

The Fifth Circuit concluded that not only were the plaintiffs in Mock v. Garland likely to win the case on the merits, but the rule the ATF issued bore no resemblance to the one it proposed and was hopelessly vague.

As was later clarified, the ruling applied only to the named plaintiffs in the case, including Maxim Defense, its customers, and the Firearms Policy Coalition and its members. But that injunction was temporary, good only while the appeal of the District Court judge’s denial was being heard.

A number of other gun rights orgs got similar injunctive relief as well.  Late last night, the District Court judge issued a full preliminary injunction. As Judge Reed O’Conor wrote in his order . . .

The Court finds that Mock, Lewis, and other individual FPC members are threatened with irreparable injuries in the absence of an injunction. The threats to individual FPC members are twofold: (i) sustaining permanent and nonrecoverable costs from their compliance with an unlawfully issued regulation; and (ii) suffering impairment of their fundamental right to keep and bear lawful arms in self-defense. The Court finds that such threats of irreparable harm posed by enforcement of the Final Rule are credible, imminent, and intertwined with one another. …

The ATF’s own regulatory analysis concludes that the Final Rule has effectively reclassified 99% of all pistols with stabilizing braces to NFA rifles. Through seminal Final Rule adjudications, the ATF has already reclassified a whole host of specific weapons platforms and commercially available braced firearms to NFA rifles. Upon review of this record in conjunction with Plaintiffs’ declarations, there is no doubt that the Final Rule will subject both FPC members to criminal liability for currently possessing each of their braced pistols. The moment the Fifth Circuit’s injunction dissolves, Mock and Lewis will become felons because their braced pistols have become unregistered SBRs under the Final Rule’s reinterpretation of the NFA.

Well yeah. That was the ATF’s entire motivation for inflicting the rule on law-abiding gun owners as part of its weaponization by its hoplophobic Biden administration masters.

That being the case, Judge O’Connor concluded with this . . .

Accordingly, the Court ORDERS that the Government Defendants—the Attorney General of the United States; the United States Department of Justice; the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco, Firearms and Explosives—and each of their respective officers, agents, servants, and employees—are hereby:

1) ENJOINED from implementing and/or enforcing against the Firearms Policy Coalition, Inc. and all of its members the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful;

2) ENJOINED from implementing and/or enforcing against Maxim Defense Industries, LLC and any downstream customers of Maxim Defense Industries, LLC (including all direct consumer purchasers and all intermediary distributors, dealers, retailers, and OEM purchasers of Maxim Defense products, and any of their respective customers) the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful;

3) ENJOINED from implementing and/or enforcing against William T. Mock and any of his family members the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful; and

4) ENJOINED from implementing and/or enforcing against Christopher Lewis and any of his family members the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful.

This preliminary injunction protects the named plaintiffs from prosecution until the case can be fully decided. You can read the full order here.

 

 

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26 COMMENTS

  1. “A Fifth Circuit three-judge panel agreed that the plaintiffs are likely to win when the case is fully heard…”

    Unlike our Duncan v. Bonta (mag capacity ban) that has been going around the barn for seven years now, has been declared unconstitutional, appealed, declared unconstitutional again, sent back to the original court, declared unconstitutional again, appealed, taken up by the Ninth en banc, declared to be a valid infringement (the eleven judges voted right smack down party lines), appealed, sent back to the original court yet again to be considered under Bruen’s standard, declared unconstitutional yet again, appealed yet again, and now it seems to be destined back to the same Ninth panel that said it’s okay with this anti-2A infringement.

    Total judicial ping pong.

    So I guess we’ll just hold our breath and see how this Fifth Circuit brace issue pans out. Or doesn’t.

    • In other words if you are not the named plaintiffs means those who rushed to join orgs. for brace protection are right back where they started. Perhaps the judge viewed the fear motivated brace owners as a bunch of self servers who left their fellow brace owners for the wolves.

      • debbot, one would have had to have been a member to enjoy immunity.
        do you really think any of the judges thought that about any people affected?

        • jr…you being a bigoted minded twit says you are incapable of seeing the forest for the trees. The Second Amendment is not something to be divided up under duress when the Right is Alll Inclusive. What part of The Right of The People don’t you understand…bigot?

  2. Ok, so this means I can go get my brace back from my daughters house and put it back on my pistol because I am an FPC member, right?

    F’ing ridiculous the hoops senile Bidens ATF is forcing us to jump through. We can at least be assured Trump will appoint a special prosecutor to pursue the Biden crime organization.

    • Only if you fall under the 5th circuit and even then don’t get in too big a hurry

      And your second paragraph is laughable. Nothing is going to happen just like nothing happened with Killary Klinton

      There are two justice systems in Amerika

      • Yes there are two justice systems in which Democrats seldom have to pay for unlawful and corrupt acts and Conservatives are always prosecuted no matter how flimsy the evidence. In this case with loads of ability to track the corruption by bank records, email, wire transfer records, phone calls, and witness testimony, it appears that senile Joe can avoid prosecution in two ways: A. get himself declared mentally incompetent or B. take the eternal dirt nap (kick the bucket, shuffle off his mortal coil, and join the choir invisible).

    • “Ok, so this means I can go get my brace back from my daughters house and put it back on my pistol because I am an FPC member, right?”

      I’m with you, this looks potentially encouraging, but even though I am an FPC member, I’m keeping mine well-separated out of an abundance of caution…

    • Enjoy!! It’s all part of the CHAOS that Libturds need to implement their plan for destruction of America. Hang on, enjoy the ride. None of us are going to do anything but pound our keyboards in the safety of our basements. OH, and the pro-2A Alphabet Groups will fight the 2A battle on the enemy’s terms while getting rich at lawyers’ rates. The 2A IS BIG BUSINESS for both sides. Our Founders didn’t rely on court actions to secure our independence from Georgie et el. Today, insurrection is uttered as though it were a bad thing. Fortunately, our Founders viewed it differently. This IS the government our Founders warned about, and for which they penned the Second Amendment. Antifa and BLM apply insurrection with impunity. Our Founders gave us the tools, we’re just too comfortable to apply them for the intended purpose. Read Andy Ngo’s book “Unmasked – Inside Antifa’s Radical Plan to Destroy Democracy.”

      • America, a vibrant,aggressive new nation being formed in 1776,is now “Candy Ass Country” full of gutless blowhards none of whom would risk falling in the shower, much less fighting to regain our freedom. “Rave on Candy Asses”

      • Of what tools are you speaking ?
        The theoretical tool or the physical tool.
        If it’s the physical tool we lost that with the GCA amongst other infringements.
        Blame our parents?
        Wars are convenient, fighting for other people’s freedoms as We lose ours seems to be the American way since 1918.

    • My question too. At least you can workout like before they had braces. And jumping to my chit state of ILL annoy how many gubmint goons will attempt to seize heavily armed AR owner’s verbotten gunz??? Folks get a mite miffed when you violate their rights🙄

    • +1 for the Dukes of Hazzard reference.

      Fun trivia…most of that series was filmed right here where I live, and the rural homestead (an actual residential property, not just a set piece) for the 2005 movie version is located half a mile from my home.

  3. Govt is too lazy. If they have your address and you have enough braces to make the headlines or commit a crime to make headlines and they find a brace you might be at risk.

    Otherwise, don’t waste your thoughts.

  4. Good result (hardly unexpected, of course).

    So the next step will be for DoJ to ask for a stay pending appeal. Judge O’Connor will likely deny it. DoJ will then move the Fifth Circuit for a stay pending appeal, which also will be denied.

    DoJ will then file an emergency motion with SCOTUS for a stay pending appeal. Now, normally I’d say that’s highly unlikely (both because SCOTUS stays pending appeal are as uncommon as hens’ teeth and because DoJ has a very weak hand they are playing).

    However, I said the same thing in VanDerStok (“frame or receiver” case, where there is not only a FINAL judgment but also an affirmance by the Fifth Circuit) . . . but SCOTUS not only issued a stay of the permanent injunction pending a decision on the cert petition, the stay they entered was broader than what DoJ requested! So who knows?

    We may have some clarity next Monday. Justice Thomas has added the request to vacate the Second Circuit’s stay pending appeal of the preliminary injunction in the NY cases to the scheduled conference later this week, and orders from the preceding week’s conference typically come out on Mondays. We’ll see if the coalition that gave us Bruen is sticking together, or if one of them has gone wobbly.

    (I’m worried about ACB, as if she goes wobbly Roberts will wobble right along with her)

      • When Kav was on the DC circuit, he ruled (in his dissent) that the 2A doesn’t allow the banning of an entire class of weapons. So, no AWB from him, and since magazines are a necessary component of a semi-auto…

        On this, I doubt he’s that ‘wobbly’, but I’ve occasionally been wrong before… 🙁

      • Except that Kavanaugh joined Thomas, Alito, and Gorsuch in dissenting from the grant of a stay in VanDerStok. And his questioning at the Bruen argument was pretty scathing. He seems to be on side.

  5. ScaredyAFT :” Hey , the judge said we cant.”
    Beetleback: “Fck the judge, he cant do nothing, we got gunms, he’s got paper.”

  6. This has turned out to be as much of a mess and political football as the corrupted illegal alien mess.

  7. “ORDERS that the Government Defendants—the Attorney General of the United States; the United States Department of Justice; the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco, Firearms and Explosives—and each of their respective officers, agents, servants, and employees”

    The JBT can’t read/don’t care about no stinking “order” prole.

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