Gerald M. Salcido (11956) SALCIDO LAW FIRM PLLC IN THE ...

Case 2:19-cv-00037-JNP-BCW Document 2 Filed 01/16/19 Page 1 of 36

Gerald M. Salcido (11956) jerry@ SALCIDO LAW FIRM PLLC 43 W 9000 S Ste B Sandy UT 84070 801.413.1753 Phone 801.618.1380 Fax

Attorneys for W. Clark Aposhian

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRCT COURT OF UTAH CETNRAL DIVISION

W. CLARK APOSHIAN,

Plaintiff,

v.

MATTHEW WHITAKER ACTING ATTORNEY GERNAL OF THE UNITED STATES,

&

UNITED STATES DEPARTMENT OF JUSTICE

&

THOMAS E BRANDON ACTING DIRECTOR BUREAU OF ALCHOL, TOBACCO, FIREARMS AND EXPLOSIVES

&

BUREAU OF ALCHOL, TOBACCO, FIREARMS AND EXPLOSIVES

Defendants.

CIVIL ACTION NO.: COMPLAINT

JURY TRIAL DEMANDED

Case 2:19-cv-00037-JNP-BCW Document 2 Filed 01/16/19 Page 2 of 36

COMPLAINT Plaintiff, by his attorneys Caleb Kruckenberg and Steve Simpson of the New Civil Liberties Alliance and local counsel Gerald M. Salcido, hereby alleges the following:

PRELIMINARY STATEMENT The U.S. Constitution vests "All legislative Powers" in the Congress and directs that the President "shall take Care that the Laws be faithfully executed ... ." U.S. Const. art I, ? 1, and art. II, ? 3 (emphasis added). It is therefore a basic tenet of our government that the Executive Branch may not, on its own, rewrite the law as it sees fit. The Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives, have violated this basic premise of our Constitution by issuing the "Bump-StockType Devices" Final Rule. Contrary to statutory language enacted by Congress (and signed by the President), and circumventing Congressional efforts to revise that language, this rule is scheduled to make hundreds of thousands of law-abiding Americans into felons in defiance of constitutional restraints on executive power. Whatever the merits of such a law, the Final Rule violates the fundamental constitutional order and thus cannot be tolerated. Plaintiff, W. Clark Aposhian, like hundreds of thousands of his fellow Americans, legally purchased a bump-stock device with the ATF's express approval. And even though the law written by Congress has not changed, the Department of Justice has ordered Mr. Aposhian to destroy or surrender his device or face criminal prosecution. The Constitution does not permit such lawmaking by executive fiat, and the rule must be permanently enjoined.

PARTIES 1. Plaintiff, W. Clark Aposhian, is a natural person and a resident of the State of Utah.

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Case 2:19-cv-00037-JNP-BCW Document 2 Filed 01/16/19 Page 3 of 36

2. Mr. Aposhian is a law-abiding person and has no disqualification that would prevent him from lawfully owning or operating a firearm and related accessories. 3. Mr. Aposhian lawfully acquired a Slide Fire bump-stock device, which had been approved for sale by the Bureau of Alcohol, Tobacco, Firearms and Explosives, for use in recreational shooting and target practice. 4. Mr. Aposhian currently owns a "Slide Fire" bump-stock device, which has been banned by a final rule issued by the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives, which will become effective on March 26, 2019. Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018). 5. The Final Rule directs Mr. Aposhian to destroy or surrender his Slide Fire device by the effective date of the rule. 6. Defendant Matthew Whitaker, Acting Attorney General of the United States, is the acting head of the Department of Justice. 7. Defendant Acting AG Whitaker is sued in his official capacity. 8. Defendant United States Department of Justice is an agency of the United States, which is partially responsible for the administration and enforcement of the National Firearms Act and the Gun Control Act. 9. Defendant Thomas E. Brandon, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, is the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives. 10. Defendant Acting Director Brandon is sued in his official capacity.

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11. Defendant the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is an agency of the United States, which is partially responsible for the administration and enforcement of the National Firearms Act and the Gun Control Act.

JURISDICTION AND VENUE 12. This Court has federal question jurisdiction pursuant to 5 U.S.C. ? 702 and 28 U.S.C. ? 1331. 13. This Court has the authority to grant an injunction in this matter pursuant to 28 U.S.C. ?? 2201 and 2202. 14. Venue for this action properly lies in this district pursuant to 5 U.S.C. ? 703 and 28 U.S.C. ?? 1391(b)(2), (e)(1)(C) because Mr. Aposhian resides in this judicial district, a substantial part of the events or omissions giving rise to the claim occurred in this judicial district, and because the property at issue in this action is situated in this judicial district.

STATEMENT OF FACTS I. LEGAL BACKGROUND

A. The Relevant Statutes 15. In 1934 Congress passed the National Firearms Act (NFA), which regulated firearms under Congress' power to lay and collect taxes. See United States v. Dalton, 960 F.2d 121, 124 (10th Cir. 1992). 16. Under the NFA, Congress criminalized the possession or transfer of an unregistered firearm, while also prohibiting the registration of firearms otherwise banned by law. See 26 U.S.C. ?? 5812(a) (registration prohibited "if the transfer, receipt, or possession of the firearm would place the transferee in violation of law"), 5861 (prohibited acts).

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17. In 1968, Congress passed the Gun Control Act (GCA) criminalizing possession of firearms for certain classes of people. See 18 U.S.C. ? 921 et seq. 18. Beginning in 1986, Congress amended the GCA, prospectively outlawing most machineguns and simultaneously making it unlawful for any person to register those weapons. Dalton, 960 F.2d at 122-23. 19. Today, with limited exceptions for governmental actors and machineguns that were in existence and registered prior to the effective date of the statute, May 19, 1986, it is a federal felony offense for any person to "transfer or possess a machinegun." 18 U.S.C. ? 922(o). 20. This offense is punishable by up to 10 years in federal prison for first-time offenders. 18 U.S.C. ? 924(a)(2). 21. As defined by Congress, under both the GCA and NFA, the term "machinegun" "means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person." 26 U.S.C. ? 5845(b); see also 18 U.S.C. ? 921(23) ("The term `machinegun' has the meaning given such term in section 5845(b) of the National Firearms Act."). 22. The President is also empowered by the Arms Export Control Act of 1976, 22 U.S.C. ? 2778, to limit the import and export of certain firearms. This law restricts the import and export of "machineguns" by reference to both the GCA and the NFA. 27 C.F.R. ? 447.2(a); see

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