Author Archives: Tom Odom, Esq.

About Tom Odom, Esq.

Tom was born and raised outside of Philadelphia. He attended Rutgers University as an undergraduate and, later, University of Pennsylvania School of Law where he was an Executive Editor on the University of Pennsylvania Law Review. He served as a clerk to Judge Morton I. Greenberg of the U.S. Court of Appeals for the Third Circuit. Tom practiced law for ten years in Washington, D.C., handling matters before numerous federal administrative agencies and litigating several significant issues of federal constitutional law. He resigned his partnership for a full-time teaching position and spent the next ten years as a law professor at schools including Penn State/Dickinson School of Law, Rutgers School of Law -- Camden, University of Richmond School of Law, and Oklahoma City University School of Law. While a professor, Tom published three books on federal constitutional law and articles on various topics. Tom joined the Prince Law Firm, P.C., due to his interest in protecting constitutional rights and the firm's reputation in representing individuals in firearms related matters. He assists clients in complying with regulatory requirements and in litigating when their rights have been infringed.

The Second Amendment: Enforcing the Heller Decision

While at a conference last week I had the pleasure of attending a panel discussion entitled:  “The Second Amendment:  Enforcing the Heller Decision.”  A panel that included voices from across the political spectrum engaged in a give-and-take that well summarized developments in recent years.  The discussion was recorded and you can view it here.  I was quite pleased to have an opportunity to ask the panel to address the “as applied” challenges of the kind that Firearms Industry Consulting Group has helped to spearhead, and to find broad consensus on the panel for expanding the favorable case law through careful presentation of such cases.

My colleague, Josh Prince, has blogged much more extensively about the “as applied” challenges both with regard to non-violent, non-felony convictions as well as with regard to isolated encounters with the mental health establishment.  FICG has had success with such challenges.

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Filed under Constitutional Law, Firearms Law

A Proposal to Limit the Regulatory State

Readers of this blog are well aware of the extent to which individual liberties are constrained not only by laws passed by Congress but also by federal administrative agencies (like ATF but also including EPA, and any number of other examples).  For most of last week I was in Washington, D.C., attending a conference, where over lunch one day I learned of a new proposal to empower Congress to limit runaway agency rules.

For the past few years a bill has been pending to enact the REINS Act, which would require that major rules be enacted by Congress itself, treating the output of a federal agency’s notice-and-comment rulemaking effort as the equivalent of a bill for the consideration of Congress.  That legislative proposal has not moved forward due, in part, to the lack of a filibuster-proof majority in the Senate as well as the certainty of a veto from President Obama (who often took unilateral action as the head of the bureaucracy).  Had the REINS Act been law, presumably measures like ATF-41P would have died from the lack of affirmative congressional approval.

I learned last week of a proposal that would go a step beyond the proposed REINS Act.  The Madison Coalition and its energetic Director, Roman Buhler, are generating pressure for a constitutional amendment that would permit 25% of the membership of either house of Congress to object to federal agency rulemaking, requiring that Congress then affirmatively act on the agency’s proposal before it would go into effect.  The Reguatory Freedom Amendment already has generated significant support and it certainly worthy of public consideration.  I welcome readers to visit the Madison Coalition to learn more about the proposal.

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Filed under ATF, Business Law, Communications Law, Energy Law, OSHA

A Brief Memorial to Justice Scalia

I was shocked by the sudden death of Justice Scalia this past weekend.  I will not say that he was my favorite member of the current Court or that I always agreed with his opinions, but I certainly agreed with him much more often than not.  As a law professor, he served as a mentor (albeit from afar for most of us) for a generation of students who challenged the notion that law was dead, doctrine did not matter, and the U.S. Constitution should not restrain the efforts to adopt “modern solutions” and bow to contemporary public opinion.  Even more so, he stood in opposition to exercise of the judicial power to invoke some new understanding of the U.S. Constitution that was not supported by its text or structure, the shared understanding of its meaning among its drafters and the people who ratified it, or the manner in which it had been interpreted from its adoption.  Those positions with respect to constitutional interpretation were a reflection of a broader endorsement of the “rule of law” — that basic concept that law has a discernable meaning, that it must be applied according to that meaning regardless of the identify of the persons enforcing it (the “rule of man”) and the identity of the persons against who it is enforced (the concept that “no man is above the law”).

Against that backdrop, the response to the death of Justice Scalia has been extremely disappointing.  I did not think it possible that the current political environment could get much worse, but it did.  Leaders of both political parties raced to the podium to make announcements that suggested Justice Scalia’s successor would simply implement their respective political agendas, acting as a partisan no different than any other political appointee.  I cannot imagine any worse tribute to Justice Scalia’s legacy than the (sometimes) unacknowledged attack on the very premise of the rule of law.

While for partisan reasons it is understandable that Democrats would prefer to see a successor nominated now at the same time it is understandable that Republicans would rather wait in the hope of winning the Presidency.  But neither side should speak for the Court on whether it can or cannot function without nine justices.

The facts of the matter are that (1) President Obama has the constitutional authority to name a successor (even if he lacks the political capital to force the Senate to act), (2) that in recent decades no vacancy on the Court that has arisen in the final year of a President’s term has been filled prior to the Presidential election, and (3) that whether someone fills the vacancy immediately or the seat remains vacant until after the election, the Court will continue to function.

The dispute is one over the exercise of partisan political power, not over the legal authority of the President to make a nomination, the legal authority of the Senate to confirm or reject or delay acting upon a nomination, or the ability of the Court to do its job with a vacant seat.  Most of the Court’s cases are decided unanimously or with a sole dissent.  In cases where the Court divides 4-to-4, the ruling establishes no Supreme Court precedent.  For cases were the Court is divided and a definitive ruling is necessary, the Court retains the power to delay until after a ninth justice joins them the hearing a case or the scheduling of re-argument.  Even when the Court has nine justices, one or more may recuse themselves from a case due to a conflict of interest, yet the Court continues to serve its constitutional function.

One cannot invariably predict the rulings of a justice (or judge) exclusively on the basis of who nominated the individual for a seat on the bench.  FDR nominated Felix Frankfurter.  Ike nominated William Brennan.

Let’s honor Justice Scalia by placing the focus on the qualifications of a nominee as well as the nominee’s understanding of the judicial role and the rule of law, and not solely on which President makes the nomination.

 

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Important Update on Implementation of ATF-41F

Rather than use the rulemaking process set forth in the Administrative Procedure Act, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) seemingly continues to release information in a haphazard manner that sows confusion among the very people striving to comply with its requirements.  After taking more than two years to review comments and draft regulation ATF-41F that was published on January 15, 2016, ATF already has had meetings with a small, hand-selected audience to announce that the regulation does not actually mean what it says.  Given that the regulation does not become effective until July 13, 2016, one might expect ATF to withdraw the rule and revise its text so as not to mislead the public.  It would be a breath of fresh air to see ATF show such concern.

 

ATF now asserts that when ATF-41F becomes effective, all Forms 1 and Forms 4 submitted by legal entities must be accompanied by fingerprints and photographs regardless of the two-year look back provision stated in the regulation.

 

ATF also now takes the position that current law will be applied to all applications postmarked prior to July 13, 2016.

 

ATF’s Meeting

 

As Silencer Shop reported on its blog, ATF and representatives of ATF’s National Firearms Act Branch met with the American Suppressor Association (“ASA”) and some of its members, including Silencer Shop itself while at SHOT Show last month.  While the National Rifle Association’s Institute for Legislative Action (“NRA ILA”), the National Shooting Sports Foundation, and the Gun Owners of America, Inc. & Gun Owners Foundation (“GOA”) all filed comments on the proposed rule that culminated in ATF-41F, ATF did not include representatives of those organizations in its meeting.  ATF also failed to include any representatives of the media.  Despite the number of major comments submitted by attorneys who advise consumers who seek to lawfully possess firearms regulated under the National Firearms Act (including Firearms Industry Consulting Group®, David M. Goldman and the Gun Trust Lawyer® nationwide network, and many others), no such individuals were included in ATF’s meeting.

 

Even after the meeting ATF took no steps to publish the information it shared.  The rest of us, as usual, were left in the dark.

 

ATF Asserts Fingerprints and Photographs Will Be Required With All Applications After July 13, 2016

 

As reported by Silencer Shop, ATF asserted that the certification procedure outlined in ATF-41F does not, in fact, establish a two-year window during which trusts and other legal entities submitting a subsequent Form 1 or Form 4 could certify there had been no change and thereby avoid having to resubmit fingerprints and photographs for all “responsible persons” with each new application.  Instead, ATF apparently now takes the position that despite the clear language of a regulation less than a month old, it really means something else.

 

The new text of 27 Code of Federal Regulations section 479.63, as revised by ATF-41F, governs the identification of the applicant (on a Form 1 or a Form 4).  The text is available at volume 81 of the Federal Register on pages 2722 and 2723.  The section has three subsections.  Subsection (a) addresses the situation where the applicant “is an individual”.  Subsection (b) addresses the situation where the applicant is a trust or other legal entity.  And subsection (c) alleviates the burden that would be imposed on a legal entity submitting all the documentation required in subsection (b) upon a “certification that the information has not been changed since the prior approval”.  The point of ATF’s new interpretation is the breadth of the relief provided by subsection (c).  To answer that question, one may look at the plain text of the regulation.  Subsection (b) sets forth the filing requirements for a trust or other legal entity.

 

Subsection (b) is further divided into two subsections.  Section 479.63(b)(1) simply specifies how the address of a legal entity is determined.   Section 479.63(b)(2) sets forth the additional documentation that must accompany the application when submitted by a trust or other legal entity and it contains four separately-numbered requirements:  (i) documentation of “the existence and validity of the entity”, such as a copy of the trust, (ii) an ATF Form 5320.23 for each “responsible person”, (iii) photographs, and (iv) fingerprint cards.  If the regulation was designed so that the certification available under section 479.63(c) were limited to only the documentation of the existence and validity of the entity rather than all four requirements, one would expect to find that the cross-reference to the exception for the certification procedure would be part of the text of section 479.63(b)(2)(i).  But that is not where ATF referenced the exception.  Instead, ATF placed the reference to the exception under section 479.63(c) in the general language of section 479.63(b)(2) preceding the four numbered requirements thereby indicating that the exception applied to all four forms of documentation.

 

ATF not only contradicts the text of its recently-drafted rule, the resulting procedure would seem to be upside-down in terms of ATF’s stated purpose in adopting any new rule at all.  Consider the situation of a trust that sought to acquire a different suppressor each month for a year.  Under ATF’s interpretation, every month each and every “responsible person” would be required to submit a new set of fingerprints (which obviously had not changed) and a new photograph (which, in the course of a month, is unlikely to change significantly), but the one item which could have changed significantly — the trust which may have added additional responsible persons — would not be required to be submitted.  In any rational system, the last item from the list of four types of required documentation that ATF should be willing to accept based on certification would be the paperwork that demonstrates who constitutes a responsible person.  The whole mistaken premise of ATF-41F was ATF’s belief that people who lawfully acquire NFA-regulated firearms might misuse a trust or other legal entity as a means to permit use of the firearm by some improperly-authorized “responsible person” of the legal entity.  If there were any such problem it is far from clear how requiring someone to submit a fresh set of fingerprints every month addresses it in any way.  Once ATF has the fingerprints to confirm the identity of a responsible person, the only thing that should matter is whether some new responsible person has been identified but evidence on that issue that is the very information ATF assigns the lowest priority.

 

ATF acknowledged receiving comments addressing the issue of whether fingerprints and photographs should be required each time an application was filed.  ATF’s response in the preamble to ATF-41F was that such an approach “does not meet the NFA’s requirement that each NFA transaction must be accompanied by an individual application and registration.”  81 Fed. Reg. 2684.  Notably, the only supporting citation ATF offered for that view was to ATF’s own regulations, not to the NFA itself.   Obviously, the NFA itself does not require that every NFA transaction be accompanied by fingerprints and photographs as for eighty years neither fingerprints nor photographs were required with regard to applications filed by legal entities.  As a result, while ATF’s response may have been adequate with regard to the suggestion that individual applicants not be required to submit fingerprints and photographs with each separate application, it provided no reason for imposing such a requirement on legal entities and, indeed, section 479.63(b)(2) and section 479.63(c), when read together, imposed a requirement for fingerprints and photographs to accompany applications only if either more than two years had elapsed or there had been some change with regard to the legal entity since the last application.  By announcing its new interpretation ATF essentially acknowledges that it failed to provide a reasoned explanation for the requirement that fingerprints and photographs accompany applications from legal entities more frequently than suggested in the comments.

 

The suggestion that fingerprints and photographs must accompany every Form 1 or Form 4 submitted by a trust or other legal entity has far-reaching consequences.  All the tax dollars spent on establishing a system to permit the electronic filing of a Form 1 and Form 4 will have been wasted as e-Forms were limited to situations where there were no accompanying fingerprints and photographs, and now zero applicants would qualify for use of the system.  Further tax dollars spent to develop the second version of e-Forms will also have been wasted.  Without reconsideration of its interpretation, e-Forms will be completely unavailable for applications involving consumers.

 

ATF Advises Postmark of Applications Will Determine Grandfathering

 

As reported by Silencer Shop, ATF will apply existing law to all applications postmarked prior to July 13, 2016.

 

When ATF first released the proposed rule that was to become ATF-41F selected individuals were advised about its retroactivity provisions while the public at large was left to wonder how the matter would be handled.  The issue was one raised in comments filed with ATF on its proposal, specifically requesting that ATF comply with its obligation to inform the regulated community (not just a few who received a reply) as to how the rule would be implemented with regard to applications approved during the period between publication of a final rule and the effective date of the rule.  ATF was also requested to address how applications would be handled that had been sent to ATF but which were not completed when the new rule became effective.

 

Apparently in a rush to publish ATF-41F, this issue is another one where ATF seems to have determined how to handle the issue only after publishing the rule.  In the preamble to ATF-41F, ATF explained only that “the final rule will not apply to applications that are in ‘pending ‘ status, or to previously approved applications”.  81 Fed. Reg. 2710.  The all-important question of when an application would be considered “pending” was completely ignored.  At various times ATF officials suggested that perhaps the key date would be when the payment for the transfer tax was processed, or maybe when the application made its way to the appropriate branch of ATF, and so forth.  The decision to abide by the postmark date is perfectly reasonable.  One must question, however, why ATF could not simply state that matter in the text of ATF-41F itself so that everyone would know the answer.  It would seem either that ATF prefers not to tie itself down by publishing such answers, which denies the public fair notice, or ATF had not decided the matter until after publishing ATF-41F which raises the question why ATF-41F was not delayed a few weeks so as to incorporate such information.

 

Public Confusion

 

Members of the public have already been posting questions regarding the confusion caused by ATF’s statements reported by Silencer Shop.  Certainly, clients seeking to understand ATF-41F have been asking questions about these matters since we first reported on January 4, 2016 that a draft of the rule had been posted to ATF’s Website.  Unfortunately, it seems now that the best answer is that ATF is still resolving these matters for itself and may change its mind as it works through the process of implementing the new rule.  Those are steps the agency is supposed to take before publishing a new rule.  Given that the rule does not become effective until July 13, 2016, one hopes ATF does the responsible thing and incorporates this important information into a corrected rule so that the text actually reflects the manner of implementation.

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Filed under ATF, Firearms Law, Gun Trusts

Publication of the ATF-41P Final Rule

In the Federal Register for today, January 15, 2016, ATF published its Final Rule in ATF-41P, at volume 81, pages 2658 through 2723.   As previously reported here, ATF posted the Final Rule to its Website on January 4, 2016.  In the event of any discrepancies, the version published in the Federal Register represents the official text.  You may find a brief description of the rule here.  (Please note that ATF designated the Final Rule as “ATF-41F” despite the fact that the Proposed Rule and the rulemaking docket were designated ATF-41P.)

 

The language of the actual regulations  span only Federal Register pages 2721 to 2723, with pages 2658 to 2721 constituting the “preamble” or the “concise general statement of their basis and purpose” as required by section 553(c) of the Administrative Procedure Act.  For purposes of interpreting the meaning of the three pages of regulations, the sixty-two page preamble constitutes a very influential source.  And, for purposes of determining whether the regulations were validly adopted, the preamble is the key document.  On its face, the preamble reflects ATF’s failure to abide by the procedure mandated by Congress in several key respects.  Throughout the document ATF substitutes conclusory statements for a reasoned explanation.

 

A preliminary analysis of the Final Rule permits a few observations, the most important of which is that no change takes effect until July 13, 2016, see 81 Fed. Reg. 1658, 180 days after publication in the Federal Register.  The delayed effective date means that there is an opportunity for trusts and other legal entities to file one or more Form 1s and Form 4s to be processed under current law and effectively grandfathered prior to the new rule taking effect.  Moreover, ATF has indicated that forms that are in the course of being processed on the effective date will be handled under current law.  See 81 Fed. Reg. 2710.

 

The delayed effective date also means that there is an opportunity for persons who continue to oppose the rule, the attorneys representing them, and the various organizations that filed comments on the proposed rule to communicate and cooperate.  While no one can force such cooperation, wasted time can be minimized and an optimal legal strategy can be developed by working together.  The good work done in filing comments on ATF’s proposed rule laid a solid foundation for judicial review of the Final Rule, provided that there exists an adequate interest in taking that course.  In that vein, we obtained www.FightATF41p.com, which provides further information about ATF-41p, issues with the rulemaking and the ability to submit donations for a legal challenge to invalidated, at least portions, of ATF-41p.

 

Just as we outlined numerous problems in ATF’s proposed rule, we will be posting here some of ATF’s errors with regard to the Final Rule.  Please check back for updates.

UPDATE:   Several comments to this post raised the prospect of congressional action to prevent the implementation of the Final Rule.  After almost two years spent educating Congress about the issue, Amendment 302  was adopted by the House of Representatives before the House passed the appropriations bill to fund ATF for the fiscal year starting October 1, 2015.  Amendment 302 would have prohibited the expenditure of funds to issue a rule that changed the CLEO certification requirement “in a manner that has the same substance of the proposed rule” that culminated in the Final Rule addressed here.  (By its own terms, Amendment 302 would not have limited ATF’s ability to adopt a Final Rule that imposed substantial burdens as long as the CLEO certification requirement were not extended to legal entities.)  Amendment 302 along with the rest of the appropriations bill failed to pass the Senate.  Instead, Congress enacted and the President signed the Consolidated Appropriations Act of 2016 which lacked any such restriction while funding ATF through September 20, 2016.   The provisions regarding ATF are located at page 2029-60 and 2029-61 of that Act.  Subsequently, Rep. John Culberson, the Chairman of the Commerce, Justice, and Science Appropriations Subcommittee proposed “to defund and stop the President’s proposed executive actions.”  Rep. Culberson stated that he has and will use his power as Chairman to restrict ATF’s ability to manage the appropriated funds on a “week to week” basis through oversight, without the need for any new legislation .  The fact that ATF published the Final Rule despite that warning would seem to suggest either that the oversight does not place sufficient pressure on ATF or that the oversight authorities do not believe the Final Rule is improper.  You can make yourself heard on the issue by calling the Congressman’s office at 202-225-2571.

 

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Filed under ATF, Firearms Law, Gun Trusts

U.S. Supreme Court Asked to Hear Another Second Amendment Case

Today attorney Tom Odom of Prince Law Offices, P.C., will file with the U.S. Supreme Court a brief on behalf of Firearms Owners Against Crime (“FOAC”) and Firearms Industry Consulting Group (“FICG”), in support of the request of Tab Bonidy and the National Association for Gun Rights to review a decision of the U.S. Court of Appeals for the Tenth Circuit.

Bonidy is a responsible, law-abiding citizen with a permit to carry a firearm who lives in rural Colorado.  Like millions of other Americans, he obtained such a permit so that he might be prepared to defend himself outside of his home.  When the U.S. Postal Service advised Bonidy that he would be subject to prosecution simply for momentarily storing his firearm in the trunk of his vehicle in an unsecured parking lot made available for postal patrons, Bonidy sought a determination that applying the postal regulation to him under such circumstances would violate the Second Amendment.

The area where Bonidy lives is sufficiently rural that there is no home delivery of mail, the lobby of the post office is open to the public at all times so that individuals may retrieve mail from their post office boxes, and the post office does not maintain any regular security employees.  Nonetheless, the Tenth Circuit stated that both the lobby and the unsecured parking lot where Bonidy proposed to lock the firearm in the trunk of his vehicle constituted “secure places” beyond the scope of the Second Amendment right articulated by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

In the belief that Bonidy’s case presents a superior opportunity for the U.S. Supreme Court to make clear that the Second Amendment is not exclusively limited to self-defense within one’s own home, FICG prepared the brief in support of Bonidy’s petition for certiorari on a pro bono basis.  FOAC joined in the effort and covered the cost of the printing of the briefs.

The decision below was reported as Bonidy v. United States Postal Service, 790 F.3d 1121 (10th Cir. 2015).  The U.S. Supreme Court docket number is 15-746.  Here is a link to the brief filed with the court.

UPDATE: On behalf of the U.S. Postal Service the Solicitor General (“SG”) requested and was granted additional time to file a brief in opposition to U.S. Supreme Court review. While the SG’s position is not surprising, the fact that the SG will file a brief at this stage indicates concern that the case could represent one of the 3% or so requests for review that the Court grants.

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Filed under Constitutional Law, Firearms Law

Colt Bankruptcy

I am aware that some purchasers of Colt firearms are concerned with the announcement earlier this month that the company has filed for bankruptcy.  Please note that Colt’s press release on the subject found here explains that Colt requested that the Bankruptcy Court approve its “requests to protect trade creditors, vendors, and suppliers thereby allowing for its operations to continue uninterrupted during the Bankruptcy Court supervised sales process.”  In short, if you have paid for a purchase and are awaiting delivery of a firearm or if you returned a firearm for repair, Colt has said that the corporate restructuring will not interfere with “normal business operations”.

If you have a more substantial financial interest in Colt — as a shareholder or bondholder or lender — you may want to consult with an attorney who handles bankruptcy matters for further explanation of the potential impact upon your interests.

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Filed under Firearms Law