Sunday, May 10, 2020

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Bump stocks under the National Firearms Act, 26 U.S.C. §§ 5801-72, and Chevron

Bump stock ban: Gun modification now illegal under federal lawThe plaintiff in Aposhian v. Barr is unlikely to succeed on his statutory challenge to the 2018 ATF rule classifying bump stocks as machine guns for purposes of the NFA (rule codified at 27 C.F.R. §§ 447.11, 478.11, 479.11). And thus the Tenth Circuit holds here that the district court properly denied a preliminary injunction.

Chevron deference applies, notwithstanding both parties' arguments to the contrary. First, the bump-stock rule is a legislative rule (which receives Chevron deference) rather than an interpretive rule (which doesn't). Second, controlling precedent does not support the plaintiff's' argument for a general rule against applying Chevron deference to agency interpretations of statutes with criminal-law implications. Third, the statutory definition of "machinegun" is ambiguous, and ATF's interpretation is reasonable.

Judge Carson dissents, finding that the NFA's "clear language" defining machine guns unambiguously excludes bump stocks from its coverage.

And for all you Second Amendment advocates out there: You'll have to look elsewhere for that constitutional analysis. The Second Amendment makes only a single cameo appearance in the case, in Judge Carson's dissent:
To be clear: I express no opinion on whether the Second Amendment protects bump stocks, nor do I express an opinion about whether any American citizen even has a valid reason to own a bump stock. Neither of those inquiries is before us today, and I do not base my dissent on any personal convictions about how a court should answer them.
Conditions of supervised release: polygraph testing

In United States v. Richards, the Tenth Circuit approved a supervised-release condition requiring periodic polygraph testing of a pornography defendant, over the defendant's Fifth Amendment challenge. The district court ordered that the test results could not be used against the defendant in a new criminal case, but could be used against him in a proceeding to revoke his supervised release.

But district court did not order (and the government has not---yet---threatened) that the defendant's refusal to submit to a test could be used against him in any way. Absent this impermissible compulsion, there is no Fifth Amendment violation. And the district court was not required to include a prohibition against this compulsion in the condition: "The Fifth Amendment---not the terms of a special condition---guarantees Defendant's privilege against self-incrimination." If the need should arise in the future ("and hopefully it never does"), the defendant can raise his Fifth Amendment challenge then.

Conditions of supervised release: substance-abuse treatment and testing

This pornography defendant said during his psychosexual evaluation that he used pornography rather than alcohol to deal with stress. On that record, the district court's imposition of a supervised-release condition requiring substance-abuse treatment and testing was not an abuse of discretion---despite the fact that it had been nearly 20 years since the defendant had abused alcohol or drugs.The condition "will help ensure Defendant does not trade one vice for another." So concluded the Tenth Circuit in United States v. Richards.

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