The Modern Sportsman V USA Brief of Appellants

Case: 20-1107 Document: 11 Page: 1 Filed: 01/30/2020
2020-1107
In The
United States Court of Appeals
For The Federal Circuit
THE MODERN SPORTSMAN, LLC, RW ARMS, LTD.,

MARK MAXWELL, MICHAEL STEWART,
Plaintiffs – Appellants,
v.
UNITED STATES,
Defendant – Appellee.
APPEAL FROM THE UNITED STATES COURT

OF FEDERAL CLAIMS IN NO. 1:19-cv-00449-LAS,
JUDGE LOREN A. SMITH.
BRIEF OF APPELLANTS
Adam M. Riley
FLINT LAW FIRM, LLC
222 East Park Street, Suite 500
Post Office Box 189
Edwardsville, Illinois 62025
(618) 288-4777
ariley@flintlaw.com
Counsel for Plaintiffs – Appellants

THE LEX GROUPDC  1050 Connecticut Avenue, N.W.  Suite 500, #5190  Washington, D.C. 20036
(202) 955-0001  (800) 856-4419  www.thelexgroup.com
Case:
Case:20-1107
20-1107 Document:
Document:11
3 Page:
Page:12 Filed:
Filed:11/15/2019
01/30/2020
FORM 9. Certificate of Interest Form 9
Rev. 10/17
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
The Modern Sportsman, LLC v. United States
Case No. 20-1107
CERTIFICATE OF INTEREST
Counsel for the:

(petitioner) (appellant) (respondent) (appellee) (amicus) (name of party)
certifies the following (use “None” if applicable; use extra sheets if necessary):
2. Name of Real Party in interest 3. Parent corporations and

1. Full Name of Party (Please only include any real party publicly held companies
Represented by me in interest NOT identified in that own 10% or more of
Question 3) represented by me is: stock in the party
The Modern Sportsman, LLC None None
RW Arms, LTD. None None
Mark Maxwell None None
Michael Stewart None None
4. The names of all law firms and the partners or associates that appeared for the party or amicus now
represented by me in the trial court or agency or are expected to appear in this court (and who have not
or will not enter an appearance in this case) are:
Flint Law Firm, LLC; Ethan Flint; Adam Riley; Jennifer Gelman
Case:
Case:20-1107
20-1107 Document:
Document:11
3 Page:
Page:23 Filed:
Filed:11/15/2019
01/30/2020
FORM 9. Certificate of Interest Form 9
Rev. 10/17
5. The title and number of any case known to counsel to be pending in this or any other court or agency
that will directly affect or be directly affected by this court’s decision in the pending appeal. See Fed. Cir.
R. 47. 4(a)(5) and 47.5(b). (The parties should attach continuation pages as necessary).
Roy Lynn McCutchen et. al. v. United States, 18-1965C, CFC
Gary Rouse et. al. v. United States, 18-1980C, CFC
Brian P. Lane et. al. v. United States, 19-cv-01492-X, ND Texas
John Doe et. al. v. Trump, 3:19-cv-00006-SMY-RJD, SD Illinois
11/15/2019 /s/ Adam M. Riley

Date Signature of counsel
Please Note: All questions must be answered Adam M. Riley

Printed name of counsel
cc: Nathanael B. Yale
Reset Fields
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................... iv
STATEMENT OF RELATED CASES ...................................................... 1
STATEMENT OF SUBJECT MATTER JURISDICTION ....................... 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ....................... 2
STATEMENT OF THE CASE .................................................................. 2
STATEMENT OF FACTS ......................................................................... 3
SUMMARY OF THE ARGUMENT .......................................................... 6
STANDARD OF REVIEW......................................................................... 9
ARGUMENT ............................................................................................. 9
I. The Final Rule took Plaintiffs’ property for “public use”

within the meaning of the Taking Clause of the Fifth
Amendment ............................................................................. 9
A. The Supreme Court’s early “police powers” cases

do not defeat the public use prong of Plaintiffs’
claims............................................................................ 11
B. Bennis v. Michigan and subsequent federal circuit

decisions exempting government enforcement
actions from Fifth Amendment claims do not
defeat the “public use” prong of Plaintiffs’ claims ....... 15
i
1. When private property is taken by

government enforcement of a criminal or
remedial statute, it is not taken for public
use within the meaning of the Fifth
Amendment ......................................................... 15
2. The Final Rule was a legislative act, not an

act of law enforcement ........................................ 18
C. Fifth Amendment analyses of state law bans on

personal property that misapply Mugler, Miller
and the Bennis enforcement rationale should not
determine the outcome of Plaintiffs’ claims ................ 23
II. The Government’s Final Rule requiring surrender or

destruction of lawfully acquired bump-stocks was a per
se physical taking .................................................................. 26
A. The Government does not escape liability for a

categorical physical taking by offering property
owners a choice between surrendering their
property to the Government or destroying it
themselves .................................................................... 27
B. Horne makes no exception from categorical

physical takings for the Government’s exercise of
police powers ................................................................ 30
C. Government “use” of taken property is not a

requirement of a categorical physical taking under
Horne ............................................................................ 31
III. Even under a regulatory takings analysis, the Final

Rule was still a categorical taking ........................................ 33
ii
CONCLUSION ........................................................................................ 37
ADDENDUM
CERTIFICATE OF FILING AND SERVICE
CERTIFICATE OF COMPLIANCE
iii
TABLE OF AUTHORITIES
Page(s)
CASES
A & D Auto Sales, Inc. v. United States,

748 F.3d 1142 (Fed. Cir. 2014)................................................. 22, 33
Acadia Technology v. United States,

458 F.3d 1327 (Fed. Cir. 2006)................................................. 16, 17
Akins v. United States,

312 F. App’x 197 (11th Cir. 2009) ............................................ 20, 21
Allied-Gen. Nuclear Servs. v. United,

839 F.2d 1572 (Fed. Cir. 1988)....................................................... 13
AmeriSource Corp. v. United States,

525 F.3d 1149 (Fed. Cir. 2008)................................................. 16, 17
Andrus v. Allard,
444 U.S. 51 (1979) .................................................................... 34, 35
Bell. Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .......................................................................... 9
Bennis v. Michigan,
516 U.S. 442 (1996) ................................................................ passim
Bowman v. Virginia State Entomologist,

105 S.E. 141 (Va. 1920) .................................................................. 13
Campbell v. United States,

932 F.3d 1331 (Fed. Cir. 2019)....................................................... 28
District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................................................ 24
iv
Duncan v. Becerra,
742 App’x 218 (9th Cir. 2018) ........................................................ 25
Duncan v. Becerra,
366 F. Supp. 3d 1131 (S.D. Ca. 2019) ............................................ 25
General Motors Corp. v. United States,

323 U.S. 373 (1945) .................................................................. 30, 32
Gibson Wine Co. v. Snyder,

194 F.2d 329 (D.C. Cir. 1952)......................................................... 18
Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives,

920 F.3d 1 (2019) .................................................................... passim
Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984) ........................................................................ 10
Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States,

48 F.3d 1166 (Fed. Cir. 1995) ........................................................... 9
Holland v. United States,

621 F.3d 1366 (Fed. Cir. 2010)......................................................... 9
Holliday Amusement Co. v. South Carolina,

493 F.3d 404 (4th Cir. 2007) .................................................... 23, 25
Horne v. Department of Agriculture,

-- U.S. --, 135 S. Ct. 2419 (2015)............................................ passim
J.W. Goldsmith Jr.–Grant Co. v. United States,

254 U.S. 505 (1921) ........................................................................ 16
Kam-Almaz v. United States,

682 F.3d 1364 (Fed. Cir. 2012)....................................................... 17
Katzin v. United States,

908 F.3d 1350 (Fed. Cir. 2018)....................................................... 28
v
Kelo v. City of New London,

545 U.S. 469 (2005) .......................................................................... 9
Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) .......................................................................... 8
Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ................................................................ passim
Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) .............................................................. passim
Maritrans, Inc. v. United States,

342 F.3d 1344 (Fed. Cir. 2003)................................................. 33, 35
Maryland Shall Issue v. Hogan,

353 F. Supp. 3d 400 (D. Md. 2018)........................................... 23, 25
Miller v. Horton,
26 N.S. 100 (Mass. 1891)................................................................ 32
Miller v. Schoene,
276 U.S. 272 (1928) ................................................................ passim
Mitchell Arms, Inc. v. United States,

7 F.3d 212 (Fed. Cir. 1993)............................................................. 36
Modern Sportsman, LLC v. United States,

145 Fed. Cl. 575 (2019) ................................................................ 1, 3
Mugler v. Kansas,
123 U.S. 623 (1887) ................................................................ passim
Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1978) .................................................................. 33, 37
Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) .................................................................. 30, 33
vi
Preseault v. United States,

100 F.3d 1525 (Fed. Cir. 1996)................................................. 13, 23
PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) .......................................................................... 24
Pumpelly v. Green Bay & Mississippi Canal Co.,

80 U.S. 166 (1871) .......................................................................... 10
Raidoptics, Inc. v. United States,

223 Ct. Cl. 594 (1980) ..................................................................... 13
Rose Acre Farms, Inc. v. United States,

373 F.3d 1177 (Fed. Cir. 2004)....................................................... 33
Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) ........................................................................ 10
Silveira v. Lockyer,
312 F.3d 1052 (9th Cir. 2002) ........................................................ 24
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ........................................................................ 10
United States v. Sec. Indus. Bank,

459 U.S. 70 (1982) .......................................................................... 11
United States v. $7,999.00,

170 F.3d 843 (8th Cir. 1999) .......................................................... 17
United States v. Welch,

217 U.S. 333 (1910) ........................................................................ 32
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. V ..................................................................... passim
U.S. CONST. amend. XIV ......................................................................... 17
vii
STATUTES
18 U.S.C. § 44 ............................................................................................ 3
18 U.S.C. § 922(o) .................................................................................... 22
18 U.S.C. § 922(o)(2) .................................................................................. 4
26 U.S.C. § 53 ............................................................................................ 3
28 U.S.C. § 1295(a)(3)................................................................................ 1
28 U.S.C. § 1491(a) .................................................................................... 1
OTHER AUTHORITIES
82 Fed. Reg. 60,929 (Dec. 26, 2017) .......................................................... 4
83 Fed. Reg. 7,949 (Feb. 20, 2018) ............................................................ 5
83 Fed. Reg. 13,442 (Mar. 29, 2018) ......................................................... 5
83 Fed. Reg. 66,514 (Dec. 26, 2018) ............................................ 4, 5, 6, 26
ATF Final Rule, https://www.atf.gov/rules-and-regulations/bump-

stocks (last visited January 19, 2020) .................................................... 26
Firearm Commerce in the United States,

https://www.atf.gov/resource-center/docs/undefined/firearms-
commerce-united-states-annual-statistical-update-2017/download
(last visited January 28, 2020)................................................................ 15
Pub. L. 99-308, 100 Stat. 449 (1986) ......................................................... 3
viii
STATEMENT OF RELATED CASES
No other appeal in or from this civil action was previously before
this or any other appellate court.
Plaintiffs are aware of two other lawsuits pending before this Court
and the Court of Federal Claims, respectively, seeking just compensation
under the Fifth Amendment for property taken by the Final Rule at issue
in this case. See McCutchen et al. v. United States, 20-1188 (Fed. Cir.);
Rouse, et al. v. United States, 18-cv-1980 (Fed. Cl.).
STATEMENT OF SUBJECT MATTER JURISDICTION
This is an appeal from a final decision and judgment of the U.S.
Court of Federal Claims entered October 23, 2019. The decision is
reported at Modern Sportsman, LLC v. United States, 145 Fed. Cl. 575
(2019). Plaintiffs filed the underlying action in the Court of Federal
Claims pursuant to the jurisdictional provision of the Tucker Act seeking
just compensation under the Fifth Amendment for property taken by the
United States Government. 28 U.S.C.A. § 1491(a). Plaintiffs timely filed
their Notice of Appeal on November 1, 2019. This Court has jurisdiction
over final judgments issued in the Court of Federal Claims. 28 U.S.C.A.
§ 1295(a)(3).
1
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether the Government commits a categorical physical taking
when it uses its legislative authority to require the abandonment or total
destruction of lawfully acquired personal property.
2. Whether the Government commits a categorical regulatory taking
when it uses its legislative authority to require the abandonment or total
destruction of lawfully acquired personal property.
STATEMENT OF THE CASE
Plaintiffs are the former owners of lawfully acquired bump-fire type
rifle stocks (collectively referred to as “bump-stocks” or “stocks”). On
December 26, 2018, in response to the Las Vegas mass shooting of
October 1, 2017, the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) issued a legislative rule (“Final Rule” or “Rule”) that
prospectively banned bump-stocks and required anyone who had legally
purchased and possessed a bump-stock prior to the issuance of the rule
to dispossess themselves of it by surrendering their property to the
United States government or destroying it. Plaintiffs complied with the
ATF rule and destroyed their lawfully acquired stocks. Appx43.
2
Plaintiffs brought this action to vindicate their rights under the
Taking Clause of the Fifth Amendment for property taken by the
government without just compensation. The government filed a motion
to dismiss Plaintiffs’ complaint for failure to state a claim. The trial court
granted the government’s motion and issued a final judgment dismissing
the complaint on October 23, 2019. See Modern Sportsman, LLC v. U.S.,
145 Fed. Cl. 575 (2019). Plaintiffs seek this Court’s review of that
judgment.
STATEMENT OF FACTS
Three federal statutes regulate the sale and possession of firearms
in the United States, the National Firearms Act of 1934 (NFA), 26 U.S.C.
Chapter 53; the Gun Control Act of 1968 (GCA), 18 U.S.C. Chapter 44;
and the Firearm Owners Protection Act (FOPA), Pub. L. 99-308, 100 Stat.
449 (1986). The GCA and FOPA specifically define the term
“machinegun,”1 and in 1986, FOPA made it unlawful for any person to
transfer or possess any firearm that meets that statutory definition, if it
was not lawfully possessed before FOPA’s effective date in 1986. Notably,
1The federal statutes regulating firearms spell “machinegun” as a single

word. Plaintiffs use the common spelling “machine gun” except when
quoting statutory language.
3
FOPA was prospective only. FOPA did not forbid the “lawful transfer or
lawful possession of a machinegun that was lawfully possessed before the
date this subsection takes effect.” 18 U.S.C. § 922(o)(2). The ATF is the
federal agency charged with administering the NFA, GCA and FOPA.
In 2010, a bump fire type rifle stock was submitted to the ATF for
examination and classification, and the ATF deemed it an unregulated
firearm part. 82 Fed. Reg. 60929 (Dec. 26, 2017). For nearly a decade, the
ATF issued a series of classification decisions announcing and affirming
the agency determination that bump-stocks are not machine guns, as
defined by the GCA and FOPA, and not subject to federal regulation. 83
Fed. Reg. 66,514.
On October 1, 2017, a shooter opened fire on a concert in Las Vegas,
killing 58 people and wounding hundreds more. Authorities reported that
the shooter used firearms equipped with bump-stocks. In December 2017,
the Department of Justice (“DOJ”) published an advance notice of
proposed rulemaking explaining that “questions had arisen” as to
whether bump-stock devices “should be classified as machineguns” under
federal law. 82 Fed. Reg. 60929 (Dec. 26, 2017). On February 20, 2018,
President Donald Trump issued a “Presidential Memorandum on the
4
Application of the Definition of Machinegun to ‘Bump Fire’ Stocks and
Other Similar Devices” noting that “the Obama Administration
repeatedly concluded that particular bump stock type devices were lawful
to purchase and possess,” and announced that he had asked his
Administration to “clarify” whether bump-stocks “should be illegal”
under the federal statutory framework banning machine guns. 83 Fed.
Reg. 7950.
The full review mandated by President Trump culminated in the
issuance of a Final Rule by the ATF that broadened elements of the
definition of “machinegun” under the NFA, GCA and FOPA, such that
the FOPA ban on machine guns could reach bump-stocks. See Bump-
Stock-Type Devices, 83 Fed. Reg. 13442 (Mar. 29, 2018). The Rule
required owners of bump-stocks to surrender them to the government or
destroy them, but it made clear that a person in possession of a bump-
stock type device was “not acting unlawfully unless they fail to relinquish
or destroy their device after the effective date of this regulation.” 83 Fed.
Reg. 66,523 (emphasis added).
Challenges to the validity of the Final Rule were filed in various
jurisdictions. In examining the Final Rule, the District Court for the
5
District of Columbia determined that the Rule was legislative in nature,
rather than merely interpretive of the firearm statutes under the
purview of the ATF. The Court of Appeals for the D.C. Circuit agreed that
the Rule is unequivocally an exercise of the ATF’s legislative authority,
notwithstanding “the government’s litigating position in this case that
seeks to reimagine the Rule as merely interpretive.” Guedes v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1, 19 (2019) (per
curiam).
On March 26, 2019, Plaintiffs filed this action seeking just
compensation under the Fifth Amendment for the 74,995 bump-stocks
they were required to destroy or surrender to the government.2 See
Appx43.
SUMMARY OF THE ARGUMENT
The Takings Clause of the Fifth Amendment of United States
Constitution provides that “private property” shall not “be taken for
public use, without just compensation.” U.S. Const. amend. V. It is
beyond question that Plaintiffs’ bump-stocks were cognizable private
2According to ATF estimates, Plaintiffs’ bump-stocks had a combined fair

market value of approximately $22,498,500 at the time of the issuance of
the Final Rule. See Final Rule, 83 Fed. Reg. at 66,538.
6
property. It is also beyond question that the Final Rule permanently
deprived Plaintiffs of every property right they had in their lawfully
acquired property without providing compensation. Appx43. Plaintiffs
legally purchased their bump-stocks and legally possessed them until the
ATF Final Rule demanded their abandonment or destruction on March
26, 2019. Appx38.
The trial court nonetheless held that Plaintiffs failed to state a
claim for just compensation under the Takings Clause of the Fifth
Amendment. The trial court erred by making the determination that
there is no taking “for public use” within the meaning of the Fifth
Amendment when the government acts pursuant to its “police powers” in
the interests of public health and safety. Under Supreme Court and
federal circuit court precedents, a “police powers” exception to Fifth
Amendment liability for categorical takings applies only when
government acts in its enforcement capacity, e.g., when it enforces an
existing criminal or remedial statutory scheme, not when government
acts in its legislative capacity to readjust legal rights. The Final Rule was
no mere enforcement action or interpretation of the statutory definition
7
of machine gun; it was an exercise of the ATF’s legislative authority to
make new law. Guedes, 920 F.3d at 17-21 (2019).
The Final Rule was a classic taking because it totally and
permanently dispossessed Plaintiffs of their tangible personal property.
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). That is the very
blueprint for a per se physical taking that demands compensation no
matter how weighty the government interest behind it. Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421 (1982); Horne v.
Department of Agriculture, -- U.S. --, 135 S. Ct. 2419, 2427 (2015). A
regulatory taking analysis also inexorably leads to a categorical duty to
compensate Plaintiffs because an act of government that destroys
tangible property necessarily also deprives its owner of all beneficial use
of the property—the lynchpin of a categorical regulatory taking. Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1017 (1992). This Court
has recognized the applicability of the Lucas standard to personal
property; and, indeed, there is nothing in either Lucas or common sense
to prohibit the application of categorical regulatory takings analysis to
tangible personal property. Under either theory, the government has a
Fifth Amendment obligation to pay just compensation to Plaintiffs.
8
STANDARD OF REVIEW
When reviewing a judgment of the Court of Federal Claims, this
Court reviews legal conclusions de novo. Holland v. United States, 621
F.3d 1366, 1374 (Fed. Cir. 2010). The question of whether a complaint
was properly dismissed for failure to state a claim upon which relief may
be granted is a question of law which this Court reviews independently.
Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48
F.3d 1166, 1170 (Fed. Cir. 1995). A motion to dismiss should be granted
only when the plaintiff’s allegations, viewed in the light most favorable
to the plaintiff do not establish any plausible claim to a legal remedy.
Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
ARGUMENT
I. The Final Rule took Plaintiffs’ property for “public use”

within the meaning of the Taking Clause of the Fifth
Amendment.
The Fifth Amendment’s Taking Clause provides that private
property shall not “be taken for public use without just compensation.”
U.S. Const. amend. V. The Supreme Court defines public use broadly. See
Kelo v. City of New London, 545 U.S. 469, 480 (2005). The Supreme Court
has also long rejected the notion that the government or general public
9
must actually use the property at issue to constitute a taking.3 See
Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166, 178 (1871)
(holding the Government’s destruction of property by flooding to be a
public use).
Early Supreme Court taking cases appear to give the government
wide latitude to exercise its police powers without implicating the Taking
Clause of the Fifth Amendment, but the Supreme Court has
subsequently explained that these cases apply only to instances when
government regulation does no more than diminish the value of an
owner’s property. It does not change the categorical rule that government
must compensate when it takes all value from private property. Modern
jurisprudence recognizes only one category of government action as an
exercise of “police powers” exempt from takings liability. That is when
private property is affected by government enforcement of existing law.
This exception does not apply to Plaintiffs’ claims because the Final Rule
3 The Supreme Court has held “that the scope of the ‘public use’
requirement of the Taking Clause is ‘coterminous with the scope of a
sovereign's police powers.’” Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1014 (1984) (citing Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
240 (1984)). In other words, the valid exercise of the Government’s police
powers is a public use itself. See also Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Planning Agency, 535 U.S. 302, 326 (2002).
10
was not an act of enforcement of existing law; it was a legislative act that
destroyed preexisting property rights. See, e.g., United States v. Sec.
Indus. Bank, 459 U.S. 70, 82 (1982).
A. The Supreme Court’s early “police powers” cases do

not defeat the public use prong of Plaintiffs’ claims.
In the nineteenth and early twentieth century, the Supreme Court
found no compensable taking in a number of cases in which government
regulation designed to protect public health and safety resulted in the
loss of private property. See Miller v. Schoene, 276 U.S. 272 (1928);
Mugler v. Kansas, 123 U.S. 623 (1887). The reasoning in these cases
cannot be extrapolated to support a conclusion that the Final Rule did
not take Plaintiffs’ property “for public use.” The U.S. Supreme Court has
subsequently held that the “harmful or noxious use” principle in Miller
and Mugler cases was nothing more than the Court's early formulation
of the police power justifying a regulatory diminution in value of property
without compensation. Lucas v. South Carolina Council, 505 U.S. 1003,
1004 (1992). The U.S. Supreme Court specifically pointed out that
neither Miller nor Mugler involved an allegation that the government
action destroyed all rights in their property. Lucas, 505 U.S. at 1026.
11
In Mugler, the government prohibited the plaintiff to operate a
brewery on his land, but he retained his land for other legal uses. The
Mugler Court was clear that the Fifth Amendment was not implicated
precisely because the Kansas statute at issue did no more than restrict
Mr. Mugler’s use of his property without disturbing his other property
rights:
As already stated, the present case must be governed by

principles that do not involve the power of eminent domain,
in the exercise of which property may not be taken for public
use without compensation. A prohibition simply upon the use
of property for purposes that are declared, by valid legislation,
to be injurious to the health, morals, or safety of the
community, cannot, in any just sense, be deemed a taking or
an appropriation of property for the public benefit. Such
legislation does not disturb the owner in the control or use of
his property for lawful purposes, nor restrict his right to
dispose of it, but is only a declaration by the state that its use
by anyone, for certain forbidden purposes, is prejudicial to the
public interests.
Mugler, 123 U.S. at 668-69 (emphases added). Restraints on the use of
private property raise different legal issues than interference with the
12
possession of private property. Preseault v. United States, 100 F.3d 1525,
1540 (Fed. Cir. 1996) (emphasis added).4
In Miller, a Virginia statute ordered the destruction of the
plaintiff’s blighted cedar trees to protect the health of apple trees. The
United States Supreme Court affirmed the Virginia Supreme Court’s
holding that the plaintiff had no right to compensation for his lost
property rights. Miller v. Schoene, 276 U.S. at 281. To the extent that the
Virginia Supreme Court considered the plaintiff’s loss of the trees
themselves, as distinct from the diminished value of his land, it noted
that “[u]nder the statute in question, all of the parts of the trees available
for fuel or fence posts are left undestroyed and remain the property of the
owner.” Bowman v. Virginia State Entomologist, 105 S.E. 141, 148 (Va.
1920).
In other words, neither the Mugler plaintiff nor the Miller plaintiff
lost all rights in his property. The Court’s determination that the
government’s health and safety rationale excused payment of just
4 The trial court cited to Raidoptics, Inc. v. United States, 223 Ct. Cl. 594
(1980) and Allied-Gen. Nuclear Servs. v. United, 839 F.2d 1572 (Fed. Cir.
1988) for the suggestion that there is a harm prevention exception for a
categorical taking, but both cases limited their rational to a mere use
restriction.
13
compensation was made in the context of a mere diminution of property
values. The plaintiffs in these early cases suffered a diminution of rights
in their property by government regulation of use, but they were not
totally deprived of their property as Plaintiffs were by the Final Rule.
The U.S. Supreme Court has subsequently clarified that the use of a
police powers rationale in these early cases is not dispositive of a modern
takings claim, certainly when plaintiffs are totally dispossessed of their
property. As the Supreme Court held in Lucas:
When it is understood that “prevention of harmful use” was

merely our early formulation of the police power justification
necessary to sustain (without compensation) any regulatory
diminution in value; and that the distinction between
regulation that “prevents harmful use” and that which
“confers benefits” is difficult, if not impossible, to discern on
an objective, value-free basis; it becomes self-evident that
noxious-use logic cannot serve as a touchstone to distinguish
regulatory “takings”—which require compensation—from
regulatory deprivations that do not require compensation. A
fortiori the legislature's recitation of a noxious-use
justification cannot be the basis for departing from our
categorical rule that total regulatory takings must be
compensated. If it were, departure would virtually always be
allowed.
14
Lucas 505 U.S. at 1026.5 Consequently, Mugler and Miller do not control
the outcome of Plaintiffs’ claims of complete dispossession, and they
certainly do not establish that Plaintiffs failed to satisfy the “public use”
prong of a taking claim.
B. Bennis v. Michigan and subsequent federal circuit

decisions exempting government enforcement actions
from Fifth Amendment claims do not defeat the “public
use” prong of Plaintiffs’ claims.
1. When private property is taken by government

enforcement of a criminal or remedial statute, it is not
taken for public use within the meaning of the Fifth
Amendment.
The government is not required to pay compensation for a taking
when a property owner is deprived of his property rights as a consequence
of a government enforcement action. See Bennis v. Michigan, 516 U.S.
5 The trial court selectively quoted a sentence from Mugler that says,
“[t]he exercise of the police power by the destruction of property which is
itself a public nuisance, or the prohibition of its use in a particular way,
whereby its value becomes depreciated, is very different from taking
property for a public use, or from depriving a person of his property
without due process of law.” Appx8. But there was no argument or finding
at the trial level that bump-stocks themselves constituted a nuisance at
common law, and the fact that hundreds of thousands of machineguns
are still legally possessed across the country negates any such contention.
Lucas, 505 U.S. at 1031; see also Firearm Commerce in the United States,
https://www.atf.gov/resource-center/docs/undefined/firearms-commerce-
united-states-annual-statistical-update-2017/download (last visited
January 28, 2020).
15
442 (1996). Bennis established that even an innocent property owner has
no claim for compensation when the government takes private property
pursuant to its enforcement of a criminal statutory scheme and related
nuisance abatement statutes. Actions taken as part of the “punitive and
remedial jurisprudence of the country” have long been authorized
without compensation. Bennis, 516 U.S. at 452–53 (quoting J.W.
Goldsmith Jr.–Grant Co. v. United States, 254 U.S. 505, 511 (1921).
This principle explains the outcome in several decisions in the
Federal Circuit in which plaintiffs who temporarily lost all rights in their
property were deemed to have no right to compensation under the Fifth
Amendment. In AmeriSource Corp. v. United States, the Government
seized plaintiffs’ prescription drugs as part of the prosecution of the
purchasing pharmacy for various offenses, including “unlawful
distribution of prescription pharmaceuticals, operating an unregistered
drug facility, and conspiracy to commit money laundering.” 525 F.3d
1149, 1150 (Fed. Cir. 2008). In Acadia Technology v. United States, the
Federal Circuit found no taking because the government took Acadia’s
property as part of its enforcement of the Lanham Act’s prohibition
against imported goods suspected of bearing a counterfeit mark. 458 F.3d
16
1327, 1329 (Fed. Cir. 2006). In Kam-Almaz v. United States, the
plaintiff’s laptop was seized at the border as part of a custom officer’s
border search. 682 F.3d 1364, 1366 (Fed. Cir. 2012). The Eighth Circuit
applied the same reasoning in concluding that Minnesota’s seizure of
property pursuant to its enforcement of drug trafficking statutes did not
effect a taking. United States v. $7,999.00, 170 F.3d 843, 845 (8th Cir.
1999).
In all these cases, the plaintiffs’ losses were an unfortunate by-
product of the law enforcement process. The complicity or innocence of
the property owner does not matter, nor does it matter whether the
property at issue is contraband; the character of the government action
is the sole focus. Amerisource, 525 F.3d at 1154-55. This Court pointed
out in Amerisource that a property owner subject to such a property loss
has her remedy in a possessory action to reclaim property wrongfully
withheld under the Fourteenth Amendment; and, in fact, this Court
found the availability of such a remedy in Amerisource to be evidence of
a governmental seizure of property for law enforcement purposes, or in
other words, an exercise of police power beyond the reach of the Taking
Clause of the Fifth Amendment. Amerisource, 525 F.3d at 1154-55.
17
Plaintiffs who lost their bump-stocks to the Final Rule had no recourse
to a possessory action. The character of the government action was
entirely different. It was not part of the punitive and remedial scheme
recognized by Bennis as an exception to the Taking Clause.
2. The Final Rule was a legislative act, not an act of law

enforcement.
The Bennis line of cases has no bearing on Plaintiffs’ Fifth
Amendment claims because the ATF was not acting in its enforcement
capacity when it demanded the abandonment or destruction of bump-
stock devices. It was acting under its legislative authority to make new
law. See Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1952).
The ATF has authority to issue legislative and interpretive rules. Guedes,
920 F.3d at 17-18 (2019). Legislative rules result from an agency’s
exercise of delegated legislative power from Congress and have the force
of law. Id. As the United States Court of Appeals for the D.C. Circuit
explained in its April 1, 2019 decision in Guedes, the Final Rule was a
legislative rule with the force and effect of law that criminalized
Plaintiffs’ possession of previously lawful property going forward. 920
F.3d 1 (2019), 17-21.
18
The D.C. Circuit determined that the Final Rule was legislative by
identifying specific indicia of the exercise of legislative authority in the
ATF’s language and conduct. Id. at 18. Legislative rules establish a new
legal rule going forward, whereas interpretive rules reflect what the
interpreted statute always meant. Id. at 19. The language of the Rule
itself clearly indicates that bump-stocks will be prohibited only in the
future when the Rule takes effect. Id. The Rule specifically invoked both
its legislative authority delegated by Congress and the Chevron deference
accorded only to legislative rules by the courts. Id. The ATF published
the Final Rule in the Code of Federal Regulations. Id. The D.C. Circuit
found that the Final Rule “unequivocally bespeaks an effort to adjust the
legal rights and obligations of bump-stock owners, i.e., to act with the
force of law.” Id.
Guedes determined that the Final Rule was legislative despite the
Government’s efforts to recast the rule as interpretive, presumably to
pre-empt a takings claim like Plaintiffs’. Guedes observed that if the
Government’s assertion that the Final Rule was an interpretive rule was
correct, then bump-stocks would always have been illegal and any
possessors would have always been felons. Id. In this case, that would
19
mean Plaintiffs’ bump-stocks were always illegal contraband and
Plaintiffs never acquired any legal rights in the bump-stocks in the first
place. The D.C. Circuit, however, noted that the Final Rule itself assured
bump-stock owners that “[a]nyone currently in possession of a bump-
stock-type device is not acting unlawfully unless they fail to relinquish or
destroy their device after the effective date.” Id. at 18.
Because the ATF was acting in a legislative capacity and not in its
enforcement capacity when it issued the Final Rule, Bennis and the
federal circuit enforcement cases are inapposite. This is also what
distinguishes Plaintiffs’ claims from Akins v. United States. The Akins
court held that the “interpretation” by the ATF the definition of machine
gun included the Akins Accelerator was reasonable. Akins v. United
States, 312 F. App’x 197, 200 (11th Cir. 2009). In other words, the Akins
court assumed the ATF reclassification of the Akins Accelerator to be the
enforcement of an existing ban—just the opposite of the Guedes
conclusion that the Final Rule introduced a new legislative rule.
Unlike the Final Rule, the ATF classification of the Akins
Accelerator had no indicia of the agency’s intention to exercise its
legislative authority—e.g., it did not reference the ATF’s delegated
20
legislative authority or make a case for Chevron deference, and it was not
published in the Code of Federal Regulations. There are also real-world
indications that ATF was acting in its retroactive interpretive capacity
in Akins and in its prospective legislative rule-making capacity when it
promulgated the Final Rule. The ATF’s early determinations that the
Akins device did not meet the definition of machinegun were made on the
basis of design specifications and a non-functioning sample of the device.
The determination was based only on the Accelerator’s “theory of
operation,” which “was clear even though the rifle/stock assembly did not
perform as intended.” Akins, 312 F. App’x at 198. The subsequent
determination that the Accelerator was a “machinegun” under the
federal firearms statutes was the result of the ATF’s obtaining and
testing an Accelerator that did perform as intended. Id. at 199.
The Final Rule’s change of heart about bump-stock devices, on the
other hand, was unrelated to organic statutory interpretation or new
technical information about how bump-stock devices function. It was a
political response. President Trump underscored the political nature of
the Final Rule by reminding the public that “the Obama Administration
repeatedly concluded that particular bump stock type devices were lawful
21
to purchase and possess.” The Final Rule was prompted by a change in
policy, not by greater familiarity with bump-stocks. The Final Rule was
obviously new legislation, not interpretation of statutory language.
The ATF reclassification that took property rights from Akins was
an act of interpreting and enforcing 18 U.S.C. § 922(o), the ban on the
possession or transfer of machine guns. The Akins Accelerator had,
therefore, always been subject to the machine gun ban. As this Court
explained in A & D Auto Sales, Inc. v. United States, “[i]f a challenged
restriction was enacted before the property interest was acquired, the
restriction may be said to inhere in the title. If a challenged restriction
was enacted after the plaintiff's property interest was acquired, it cannot
be said to “inhere” in the plaintiff's title.” 748 F.3d 1142, 1152 (Fed. Cir.
2014). The challenged restriction here, the Final Rule, on the other hand,
was a prospective legislative act whereby the ATF created new law to
bring bump-stocks under 18 U.S.C. § 922(o) for the first time after
Plaintiffs’ property interest was acquired.
Consequently, the Court of Federal Claims’ observation that
Congress has consistently regulated ownership of machineguns since
1934 is true but irrelevant. This Court has rejected the contention that
22
an owner’s “expectations of keeping or losing her property under various
possible scenarios define for that owner the extent of her title.” Preseault,
100 F.3d at 1540; see also Horne, 135 S. Ct. at 2427. The question here is
only whether Plaintiffs had the right to possess their bump-stocks when
they acquired title to them (i.e. whether bump-stocks were legal). The
Final Rule and the D.C. Circuit make it clear that they did. Guedes, 920
F.3d at 18.
C. Fifth Amendment analyses of state law bans on

personal property that misapply Mugler, Miller and the
Bennis enforcement rationale should not determine
the outcome of Plaintiffs’ claims.
Courts in other jurisdictions have misused Mugler, Miller and
Bennis to reach the conclusion that state law bans on personal property
deemed injurious to the public do not implicate the Fifth Amendment.
See Maryland Shall Issue v. Hogan, 353 F. Supp. 3d 400 (D. Md. 2018);
Holliday Amusement Co. v. South Carolina, 493 F.3d 404 (4th Cir. 2007).
These decisions should hold no sway over this Court because they are
premised on the same flawed application of Mugler outlined above.
Moreover, it is questionable whether the analysis of a state’s police
23
powers is applicable to federal exercise of police powers, and the rulings
of these courts are not binding on this Court.6
However, if the Court intends to consider the decisions of sister
courts with respect to state laws to resolve Plaintiffs’ claim, the Court
should consider the Ninth Circuit’s decision in a Fifth Amendment
challenge to a California ban on assault weapons which held “that a
government may enact regulations pursuant to its broad powers to
promote the general welfare that diminish the value of private property,
yet do not constitute a taking requiring compensation, so long as a
reasonable use of the regulated property exists.” Silveira v. Lockyer, 312
F.3d 1052, 1092 (9th Cir. 2002), as amended (Jan. 27, 2003), abrogated
on other grounds by District of Columbia v. Heller, 554 U.S. 570, 638 n.2
(2008). The Nine Circuit found that since the plaintiffs who owned
assault weapons prior to the enactment of the ban were protected by a
grandfather clause that permitted them to continue to use the weapons
no taking occurred. Id.
6 “Nor as a general proposition is the United States, as opposed to the

several States, possessed of residual authority that enables it to define
‘property’ in the first instance.” PruneYard Shopping Ctr. v. Robins, 447
U.S. 74, 84 (1980).
24
The Ninth Circuit more recently affirmed a decision of the Southern
District of California that a ban on firearm magazines violates the Taking
Clause of the Fifth Amendment. Duncan v. Becerra, 742 App’x 218, 222
(9th Cir. 2018) In particular, the court ruled that California could not use
the police power to avoid compensation for banned firearm magazines.
Id. In its decision affirmed by the Ninth Circuit, the district court
characterized the California law as a “rare hybrid taking” in that it forces
owners to choose between surrendering their property to law
enforcement for destruction (effecting a per se taking), selling their
magazines at a deeply discounted rate, or removing the magazines from
the state. Duncan v. Becerra, 366 F. Supp. 3d 1131, 1184 (S.D. Ca. 2019).
The court in Duncan concluded that “[w]hatever might be the State’s
authority to ban the sale or use of magazines over 10 rounds, the Takings
Clause prevents it from compelling the physical dispossession of such
lawfully-acquired private property without compensation.” Id. Unlike
Maryland Shall Issue and Holiday Amusement Co., the Nine Circuit
decisions reflect the Lucas understanding of Mugler and Miller as
justifying only government action that diminishes the value of property
without compensation. Maryland Shall Issue and Holiday Amusement
25
Co. were wrongly decided because they improperly apply Mugler to a
government action that completely dispossesses an owner of his property.
The reasoning of the Ninth Circuit is consistent with the general
proposition that the validly of an exercise of the state’s police power is a
question separate and apart from the takings analysis and should guide
this Court’s decision. Loretto, 458 U.S. at 425.
II. The Government’s Final Rule requiring surrender or

destruction of lawfully acquired bump-stocks was a per se
physical taking.
The ATF Final Rule required owners of bump-stocks to surrender
their private property to the government or destroy it.7 One way or the
other, Plaintiffs were permanently dispossessed of their property. The
Rule also acknowledged that ownership of the stocks was entirely legal
before the effective date of the Rule. 83 Fed. Reg. 66,523. This is a Fifth
Amendment “taking” in the most literal sense of the word. The Rule did
not just take value from Plaintiffs’ property by placing restraints on the
use of the property; it actually physically dispossessed Plaintiffs of the
7 The ATF’s website confirms “[c]urrent possessors of bump-stock-type

devices must divest themselves of possession as of the effective date of
the final rule[.]” https://www.atf.gov/rules-and-regulations/bump-stocks
(last visited January 19, 2020).
26
tangible property itself. Unlike a regulation that leaves some property
rights intact, Plaintiffs were left with nothing.
The takings analysis of a physical dispossession of personal
property by the Government is uncomplicated. A physical dispossession
of personal property by the government is per se a taking that must be
compensated, regardless of the public benefit the government sought to
achieve or the economic impact on the owner. Horne, 135 S. Ct. at 2425-
27. Courts do not balance the government’s interests against the owner’s
interest. The Government’s obligation to compensate is absolute. Loretto,
458 U.S. 419.
A. The Government does not escape liability for a

categorical physical taking by offering property
owners a choice between surrendering their property
to the Government or destroying it themselves.
The Final Rule required Plaintiffs to either abandon their property
at a drop-off site or completely destroy it at their own expense. For
purposes of Plaintiffs’ Fifth Amendment right to just compensation for
taken property, it does not matter that the ATF did not physically seize
Plaintiffs’ property. The end result for Plaintiffs would not have been any
different if the property had been physically seized. One way or the other,
Plaintiffs were left with nothing.
27
Courts have recognized that a per se physical taking occurs when
the owner is completely dispossessed of her property. Loretto, 458 U.S. at
435 n.12; Campbell v. United States, 932 F.3d 1331, 1337 (Fed. Cir. 2019)
(quoting Katzin v. United States, 908 F.3d 1350, 1361 (Fed. Cir. 2018))
(“A physical taking generally occurs when the government directly
appropriates private property or engages in the functional equivalent of
a ‘practical ouster of [the owner’s] possession.’”) (emphasis added). The
Loretto Court determined that a physical taking by the government had
occurred where a small cable box owned by a private cable television
company was installed on plaintiff’s property. Loretto, 458 U.S. at 425-
26. In other words, the government never took possession of any part of
the plaintiff’s property. The focus of the Loretto Court was not on whether
the government physically seized the property, but on the consequences
to the property owner.
Loretto was not a case involving personal property, but the Horne
Court explicitly adopted the Loretto Court’s focus on the impact on the
property rights of the owner, rather than the government’s reasons or
methods of dispossession:
28
In Loretto, the Court held that requiring an owner of an

apartment building to allow the installation of a cable box on
her rooftop was a physical taking of real property, for which
compensation was required. That was true without regard to
the claimed public benefit or the economic impact on the
owner. The Court explained that such protection was justified
not only by history, but also because “[s]uch an appropriation
is perhaps the most serious form of invasion of an owner’s
property interests,” depriving the owner of “the rights to
possess, use and dispose of” the property. 458 U.S. at 435, 102
S. Ct. 3164 (internal quotations omitted). That reasoning—
both with respect to history and logic—is equally applicable
to a physical appropriation of personal property.
Horne, 135 S. Ct. at 2427.
It is undisputed here that the Plaintiffs have been completely and
permanently ousted from the possession of their property. There is no
reason the Fifth Amendment should treat property owners who have
been completely dispossessed of their personal property by government
action differently depending on how the government chose to dispossess
them. The Horne Court did not suggest that the Fifth Amendment makes
such distinctions. The only critical distinction identified in the Horne
decision is the difference between prohibiting the sale of raisins (which
the Government could do without effectuating a taking) and requiring
raisin growers to set aside a reserve of raisins for the Government (which
Horne deemed to be a categorical taking because the growers lost all
29
rights in the raisins). Horne, 135 S. Ct. at 2428. That distinction
underscores the hallmark of a categorical taking. Under a mere
prohibition on the sale of raisins, the owner of raisins would still enjoy
the right of possession. And should sentiment or social conditions change,
as they do from time to time, and the restriction be removed, “the owner
will again be free to enjoy his property as heretofore.” Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 417 (1922) (Brandies, J., dissenting).
Plaintiffs are not in such a position. Plaintiffs have permanently lost all
rights in their property because it has been destroyed. The term “taken”
includes destruction. General Motors Corp. v. United States, 323 U.S.
373, 378 (1945).8
B. Horne makes no exception from categorical physical

takings for the Government’s exercise of police powers.
The Horne decision supports Plaintiffs’ position that the invocation
of “police powers” should not defeat Plaintiffs’ claims. The Horne Court
took the categorical stance that the government has an absolute
obligation to pay just compensation when it physically takes private
8Complete destruction was not enough for the ATF as the final rule also
contemplated that possessors should dispossess themselves of any
remaining scrap. See Appx43.
30
property—be it real property or personal property. See Horne, 135 S. Ct.
2425-26. The Horne Court was clear: “The Government has a categorical
duty to pay just compensation when it takes your car, just as when it
takes your home.” Id. at 2426. A physical taking of property gives rise to
a per se taking “without regard to other factors that a court might
ordinarily examine.” Id. at 2428 (quoting Loretto v. Teleprompter
Manhattan CATV Corp, 458 U.S. at 432). The Horne Court specified that
the “character of the government action” or “the claimed public benefit”
do not come into consideration in a per se physical takings analysis. Id.
at 2427.
C. Government “use” of taken property is not a

requirement of a categorical physical taking under
Horne.
The Supreme Court’s justification for applying a categorical
standard to a physical taking focuses on the profound consequences for
the property owner. A physical appropriation is a categorical taking
without regard to any other factors because of the severity of the property
owner’s loss: the entire “bundle” of property rights in their property—the
rights to possess, use and dispose of property. Horne, 135 S. Ct. at 2428
(citing Loretto, 458 U.S. at 435). The property owner’s loss of the entire
31
“bundle” of property rights is complete whether the government puts
taken property to use or destroys it.
It is the “the deprivation of the former owner rather than the
accretion of a right to the sovereign constitutes the taking.” United States
v. General Motors Corporation, 323 U.S. at 378. Whether the Government
directly appropriates property or destroys all of an owner’s existing rights
in the property “the Fifth Amendment concerns itself solely with the
property.” Id; see also United States v. Welch, 217 U.S. 333, 339 (1910)
(“a destruction for public purposes may as well be a taking as would be
an appropriation for the same end.”).
As Justice Holmes noted in Miller v. Horton: “When a healthy horse
is killed by a public officer, acting under a general statute, for fear that
it should spread disease, the horse certainly would seem to be taken for
public use as truly as if it were seized to drag an artillery wagon. The
public equally appropriates it, whatever they do with it afterwards.
Certainly the legislature could not declare all cattle to be nuisances, and
order them to be killed without compensation.” 26 N.S. 100, 102 (Mass.
1891).
32
III. Even under a regulatory takings analysis, the Final Rule

was still a categorical taking.
The Final Rule was obviously a physical taking: it required
Plaintiffs to surrender tangible property or destroy it. However, even if
the Final Rule were construed as a regulatory taking, it would,
nonetheless, be a per se regulatory taking because the Rule stripped
Plaintiffs of all property rights in the property he lawfully acquired.
The Government may reasonably regulate property, but a taking
will occur when a police power regulation goes “too far.” Pennsylvania
Coal v. Mahon, 260 U.S. 393, 415 (1922). In Penn Central Transportation
Co. v. New York City, the Supreme Court developed an “ad hoc” factual
inquiry to determine for how far was “too far.” 438 U.S. 104, 124 (1978).
However, the Court subsequently clarified that when a regulation
deprives land of all economically beneficial use, the Government must
pay just compensation unless the proscribed use interests were not part
of the property owner’s title to begin with. Lucas, 505 U.S. at 1027.
This Court has applied a per se regulatory principle to tangible
personal property. A & D Auto Sales Inc., 748 F.3d at 1151; Rose Acre
Farms, Inc. v. United States, 373 F.3d 1177, 1196–98 (Fed. Cir. 2004);
Maritrans, Inc. v. United States, 342 F.3d 1344, 1353–55 (Fed. Cir. 2003).
33
Opponents of applying a per se regulatory taking analysis to personal
property selectively invoke language from the Lucas decision, but the
frequently-quoted language from Lucas does not foreclose a finding of per
se regulatory taking of personal property. The Lucas Court merely
admonished that, “in the case of personal property, by reason of the
State's traditionally high degree of control over commercial dealings, [the
property owner] ought to be aware of the possibility that new regulation
might even render his property economically worthless (at least if the
property’s only economically productive use is sale or manufacture for
sale).” Id. 1027-28. Awareness of the state’s “traditionally high control
over commercial dealings” (emphasis added) does not put an owner of
tangible personal property on notice that the government might demand
the surrender or destruction of his property. Private ownership of
tangible property is not commercial dealing.
The Lucas dicta merely reaffirms the principle announced in
Andrus v. Allard: that the Government may ban the sale of an item of
personal property without effecting a taking, providing the owner
maintains possession and other beneficial uses of her lawfully acquired
property. 444 U.S. 51, 66 (1979). But as recognized by the Court in
34
Andrus, and reaffirmed by Horne, while property owners may expect
some uses of their personal property to be restricted by newly enacted
measures, people still do not expect their personal property to be “taken
away.” Horne, 135 S. Ct. at 2427.
As this Court recognized in Maritrans, the Supreme Court’s
decision in Andrus v. Allard comports with such a reading of Lucas. 342
F.3d at 1354. In Andrus, the Supreme Court held that the simple
prohibition on the sale of lawfully acquired eagle feathers does not effect
a taking in violation of the Fifth Amendment when the challenged
regulations “do not compel the surrender” of the property in question,
and “there is no physical invasion or restraint upon” it. Id. at 65. But the
Court warned that, “it is crucial that appellees retain the rights to
possess and transport their property, and to donate or devise the
protected birds.” Id. at 66. When the effect of regulation is that the owner
of personal property is entirely dispossessed of what was lawfully his, a
finding of per se taking is permissible under a regulatory analysis.
This Court engaged in the same kind of reasoning when it explored,
within the context of firearms, what separates a permissible government
restriction on property from a Fifth Amendment taking requiring just
35
compensation. See Mitchell Arms, Inc. v. United States, 7 F.3d 212 (Fed.
Cir. 1993). This Court found no compensable taking resulting from ATF’s
withdrawal of a previously held license to sell assault rifles in the United
States because Mitchell Arms retained some property rights in the
assault rifles. This Court reasoned that:
[i]n revoking the permits, ATF withdrew its prior

authorization for Mitchell to sell certain types of assault rifles
in the United States. Otherwise, Mitchell retained
complete control over the rifles. Mitchell could have
done anything it wished with the rifles, except import
them into the United States in their original
configuration. Put another way, ATF did not take the
rifles.
Id. at 217 (emphasis added). Unlike the plaintiffs in Mitchell Arms,
Plaintiffs retained no control over the bump-stocks. They had to abandon
or destroy them. Put another way, the ATF took the bump-stocks.
The Final Rule compelled the utter surrender of Plaintiff’s’ bump-
stocks. Plaintiffs lost every property right they had in their property—
the right to transport, to sell, to donate, to devise and to possess. No
rights remained because the Government demanded destruction of the
bump-stocks or abandonment to the ATF. Appx43. This is an exercise of
36
police power that goes “too far” in its regulation of the use of property
that categorically requires compensation by the Government.9
CONCLUSION
The trial court erred in dismissing Plaintiffs’ complaint alleging a
taking under the Fifth Amendment. When Government destroys all
property rights in lawfully acquired private property, not as a byproduct
of its role as enforcer of the law, but as a matter of policy, in its legislative
role, the Fifth Amendment requires that affected property owners receive
just compensation for their losses. Whether the mandated destruction or
surrender of Plaintiffs’ property is conceptualized as physical taking or a
regulatory taking, it was no less categorical. Plaintiffs respectfully ask
this Court to vacate the trial court’s judgment and remand this case for
adjudication consistent with the law.
9 Plaintiffs’ claim here renders the Penn Central test a foregone

conclusion since Plaintiffs have no rights left in their property. See Horne
135 S. Ct. at 2438 (Sotomayor, J., dissenting).
37
Respectfully submitted,
/s/ Adam M. Riley

Adam M. Riley
Flint Law Firm, LLC
222 E. Park St., Suite 500
P.O. Box 189
Edwardsville, IL 62025
T: (618) 288-4777
F: (618) 288-2864
ariley@flintlaw.com
January 30, 2020 Attorney for Plaintiffs-Appellants
38
ADDENDUM
TABLE OF CONTENTS
Appendix Page
Opinion and Order of

The Honorable Loren A. Smith
filed October 23, 2019 .................................................................... Appx0001
Judgment of
The United States Court of Federal Claims
filed October 23, 2019 .................................................................... Appx0010
Appxi
Case:
Case 20-1107 Document:
1:19-cv-00449-LAS 11 13
Document Page: 52 10/23/19
Filed Filed: 01/30/2020
Page 1 of 9
In the United States Court of Federal Claims

No. 19-449
Filed: October 23, 2019
)
THE MODERN SPORTSMAN, LLC, et )
al., )
) Fifth Amendment Takings Claim;
Plaintiff, ) Informal Rulemaking; Police Power;
) Bureau of Alcohol, Tobacco, Firearms
v. ) and Explosives; Bump Stock;
) Machinegun; Motion to Dismiss; RCFC
THE UNITED STATES, ) 12(b)(6).
)
Defendant. )
)
Ethan Albert Flint, Flint Law Firm, LLC, Edwardsville, IL, for plaintiffs.
Nathanael Brown Yale, U.S. Department of Justice, Civil Division, Washington, DC, for
defendant.
OPINION AND ORDER
SMITH, Senior Judge
In reviewing this case, the Court is sympathetic to the plaintiffs who have lost the rights
to the bump stocks they purchased while they and the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) seemingly thought bump stocks were not machineguns and were therefore
legal. In a private context, what occurred would be remedied by the concept of justifiable
reliance and plaintiffs would be compensated. However, the law is different in this case because
the government, as the sovereign, has the power to take property that is dangerous, diseased, or
used in criminal activities without compensation. Here, ATF acted properly within the confines
of the limited federal police power. In nearly all cases, if the government confiscated a gun
legally possessed by a person not committing a crime, the government would have to pay just
compensation or return the gun. Importantly, however, guns are protected by the Second
Amendment of the Constitution, but machineguns are not, as the crime waves of the 1920s and
1930s convinced Congress that machineguns do not fall within the scope of protections offered
by the Second Amendment. The courts have not overturned this measure and this Court will not
endeavor to do so now.
This case is before the Court on defendant’s Motion to Dismiss. On December 26, 2018,
the Department of Justice’s (“DOJ”) Bureau of Alcohol, Tobacco, Firearms and Explosives
issued a Final Rule clarifying that the term “machinegun” encompasses “bump-stock-type
device[s]” (hereinafter “bump stocks”), and consequently requiring the timely surrender or
Appx0001
Case:
1:19-cv-00449-LAS 11 13
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destruction of bump stocks.1 Plaintiffs allege that the Final Rule’s requirement to surrender or
destroy their bump stocks effected a Fifth Amendment taking of their property.
The impetus for ATF modifying its regulations arose when, after the deadly mass
shooting in Las Vegas on October 1, 2017, President Trump issued a memorandum to the
Attorney General. Application of the Definition of Machinegun to “Bump Fire” Stocks and
Other Similar Devices, 83 Fed. Reg. 7,949, at 7,949–50 (Feb. 20, 2018) (hereinafter “Bump
Stock Memorandum”). In that memorandum, the President urged the DOJ to “fully review” how
ATF regulates bump stocks and similar devices, and, “as expeditiously as possible, to propose
for notice and comment a rule banning all devices that turn legal weapons into machineguns.”
Id.; see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,516–17 (Dec. 26, 2018) (to be
codified at 27 C.F.R. pts. 447, 478, 479) (hereinafter “Final Rule”). In response to the
President’s Bump Stock Memorandum, ATF published a Notice of Proposed Rulemaking in the
Federal Register on March 29, 2018, in which it proposed changes to its regulations concerning
machineguns listed at 27 C.F.R. §§ 447.11, 478.11, and 479.11. Bump-Stock-Type Devices, 83
Fed. Reg. 13,442 (proposed Mar. 29, 2018) (hereinafter “NOPR”). After an opportunity for
notice and comment, which closed on June 27, 2018, ATF published a Notice of the Final Rule
on December 26, 2018. See generally Final Rule. The Final Rule had an effective date of March
26, 2019, affording owners of bump stocks a period of ninety days to either destroy or surrender
their devices at a local ATF office. Id. at 66,530, 66,554. Accordingly, plaintiffs collectively
destroyed and discarded the resulting scrap from 74,995 bump stocks.2 See Amended Complaint
(hereinafter “Am. Compl.”) at 7.
Plaintiffs filed their Complaint with this Court on March 26, 2019, and an amended
complaint on March 28, 2019. See generally Complaint; see generally Am. Compl. On May 28,
2019, defendant filed its Motion to Dismiss pursuant to Rule 12(b)(6) of the Rules of the Court
of Federal Claims (“RCFC”), arguing that a taking did not occur because the requirement to
surrender or destroy bump stocks served to protect the public health and safety, and was
therefore a valid exercise of the police power. Defendant’s Motion to Dismiss (hereinafter
“Def.’s MTD”) at 1. Defendant further alleged that “a compensable taking does not occur when
1
Pursuant to the transfer of functions from the Department of the Treasury to the
Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) under
the Homeland Security Act of 2002, the Attorney General is responsible for prescribing rules and
regulations necessary to carry out the provisions of 18 U.S.C. §§ 921 et seq. (2018), which
concern crimes and criminal procedure related to firearms. Homeland Security Act of 2002,
Public Law 107-296, 116 Stat. 2135 (2002); 26 U.S.C. §§ 7801, 7805 (2018) (authorizing the
Secretary of the Department of Treasury to administer and enforce this title, and to “prescribe all
needful rules and regulations for the enforcement of this title.”); 18 U.S.C. § 926 (providing the
Attorney General with the authority to prescribe rules and regulations to carry out the provisions
of 18 U.S.C. §§ 921 et seq.).
2
Plaintiff, The Modern Sportsman, LLC, destroyed and discarded the resulting scrap from
1,479 bump stocks; plaintiff RW Arms, Ltd. destroyed and discarded the resulting scrap from
73,462 bump stocks; plaintiff Mark Maxwell destroyed and discarded the resulting scrap from 29
bump stocks; and plaintiff Michael Stewart destroyed and discarded the resulting scrap from 25
bump stocks pursuant to the Final Rule. Plaintiffs’ Amended Complaint at 7.
2
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the Government takes property that is, or may be, subject to a statutory prohibition.” Id.
Plaintiffs filed their Response to defendant’s Motion to Dismiss on June 23, 2019, reiterating
their takings arguments. See generally Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
(hereinafter “Pls.’ Resp.”). On July 22, 2019, defendant filed its Reply in support of its Motion
to Dismiss. See generally Defendant’s Reply in Support of Its Motion to Dismiss (hereinafter
“Def.’s Reply”). The Court held oral argument on August 28, 2019, and defendant’s Motion to
Dismiss is fully briefed and ripe for review. For the reasons set forth below, the Court grants
defendant’s Motion to Dismiss.
I. Background
Over the past century, Congress has passed a series of laws to regulate the interstate
firearms industry with the underlying goal of increasing public safety. When enacting the first of
these major statutes, the National Firearms Act of 1934 (“NFA”), Congress wanted to ensure
firearm regulations would not be too liberally construed. See H.R. REP. NO. 73-9741, at 1–2
(1934). Accordingly, the NFA regulated the manufacture, importation, and dealing of a
narrowly-tailored set of firearms.3 26 U.S.C. § 5801 et seq. (2018); see H.R. REP. NO. 73-9741,
at 1–2 (1934). Among those firearms was the “machine gun,” which the NFA originally defined
as “any weapon which shoots, or is designed to shoot, automatically or semi-automatically, more
than one shot, without manual reloading, by a single function of the trigger.” National Firearms
Act, 73 Pub. L. No. 474, 48 Stat. 1236 (1934); H.R. REP. NO. 73-9741, at 1–2.
Congress further augmented its regulation of machineguns through the Gun Control Act
of 1968 (“GCA”), 18 U.S.C. § 921 et seq. The purpose behind enacting the GCA was to more
effectively regulate interstate commerce in firearms, with the ultimate goal of combatting the
“skyrocketing increase in the incidence of serious crime.” S. REP. NO. 89-1866, at 1 (1966); see
generally 18 U.S.C. § 921 et seq. Moreover, Congress sought “to reduce the likelihood that
[firearms] fall into the hands of the lawless or those who might misuse them,” and to assist States
and their political subdivisions in enforcing existing firearms laws. S. REP. NO. 89-1866, at 1;
see generally 18 U.S.C. § 921 et seq.
Less than two decades later, Congress passed the Firearm Owners Protection Act
(“FOPA”), Pub. L. 99-308, 100 Stat. 449 (1986), reiterating its desire to fight violent crime while
simultaneously strengthening protections for the rights of law-abiding gun owners. 132 Cong.
Rec. 9590 (1986) (statement of Sen. Orrin Hatch); see generally Pub. L. No. 99-308, 100 Stat.
3
The National Firearms Act of 1934 originally defined “firearms” as:
[A] shotgun or rifle having a barrel of less than eighteen inches in length, or any
other weapon, except a pistol or revolver, from which a shot is discharged by an
explosive if such weapon is capable of being concealed on the person, or a machine
gun, and includes a muffler or silencer for any firearm whether or not such firearm
is included within the foregoing definition.
National Firearms Act, 73 Pub. L. No. 474, 48 Stat. 1236 (1934); H.R. REP. NO. 73-9741,
at 1 (1934).
3
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449 (1986). Significantly, FOPA added 18 U.S.C. § 922(o) to the GCA, making it “unlawful for
any person to transfer or possess a machinegun” not lawfully obtained prior to May 19, 1986.
Consistent with this prohibition, both FOPA and the GCA incorporated the definition of
“machinegun” as used in the NFA,4 which the NFA has for decades defined as:
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) (emphasis added).
Altogether, these three statutes form the foundation upon which ATF has promulgated
rules and regulations that interpret and enforce the objectives of those statutes, including
restrictions related to the prohibition on owning machineguns not lawfully obtained prior to
1986. Indeed, since the enactment of FOPA in 1986, ATF has promulgated a number of
regulations interpreting provisions of the GCA and NFA pursuant to its delegated authority to
investigate and enforce criminal and regulatory violations of Federal firearms law. Def.’s MTD
at 5 (citing 18 U.S.C. § 926(a), 26 U.S.C. §§ 7801(a)(2)(A), 7805(a), 28 U.S.C. § 599A(b)(1), 28
C.F.R. § 0.130(a)(1)–(2)). Among those regulations are 27 C.F.R. §§ 447.11, 478.11, and
479.11, which contained identical definitions of the term “machinegun” to those in the NFA and
GCA prior to the Final Rule. Final Rule at 66,514. Pursuant to those regulations and ATF’s
delegated authority, if the owner of a firearm or device wants to know if their firearm or device
meets the definition of “machinegun,” he or she may request a clarification letter from ATF;
ATF may in turn require the submission of a prototype for testing.5 BUREAU OF ALCOHOL,
4
The National Firearms Act of 1934 originally included the term machinegun as two
words, 73 Pub. L. No. 474, 48 Stat. 1236, but now includes machinegun as one word, 26 U.S.C.
§ 5845(b) (2018).
5
Section 7.2.3.1 of the ATF Handbook also provides the following disclaimer:
ATF letter rulings classifying firearms may generally be relied upon by their
recipients as the agency’s official position concerning the status of the firearms
under Federal firearms laws. Nevertheless, classifications are subject to change if
later determined to be erroneous or impacted by subsequent changes in the law or
regulations. To make sure their classifications are current, FFLs/SOTs should stay
informed by periodically checking the information published on ATF’s website,
particularly amendments to the law or regulations, published ATF rulings, and
“open letters” to industry members.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, NATIONAL FIREARMS ACT

HANDBOOK § 7.2.3.1 (2009), https://www.atf.gov/firearms/docs/atf-national-firearms-act-
handbook-chapter-7/download.
4
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TOBACCO, FIREARMS AND EXPLOSIVES, NATIONAL FIREARMS ACT HANDBOOK § 7.2.4 (2009),
https://www.atf.gov/firearms/docs/atf-national-firearms-act-handbook-chapter-7/download.
A. 2006–2017 ATF Classification Decisions
In 2002, ATF received a request for clarification regarding the Akins Accelerator, which
ATF temporarily determined was not a machinegun. Final Rule at 66,517. Upon further review
of the device and receipt of related requests from members of the firearms industry, however,
ATF determined that the Akins Accelerator was in fact a machinegun. Id. (citing ATF Ruling
2006-2). Thus, ATF first classified a certain bump stock as a machinegun in 2006, concluding
that “a device attached to a semiautomatic firearm that uses an internal spring to harness the
force of a firearm’s recoil so that the firearm shoots more than one shot with a single pull of the
trigger is a machinegun.” Id. at 66,514. ATF reached this decision by interpreting the phrase
“single function of the trigger” from the NFA’s definition of machinegun to synonymously mean
“single pull of the trigger.”6 Id. at 66,514. As a result, ATF required all owners of the Akins
Accelerator to remove the internal spring and either dispose the spring or surrender it at an ATF
location. Id. at 66,517. When later presented with the question of whether the result of this
clarification decision effected an unconstitutional taking, this Court held it did not. Akins v.
United States, 82 Fed. Cl. 619, 622–23 (2008).
Notwithstanding its 2006 classification decision, between 2008 and 2017, ATF received
additional clarification requests from owners of bump-stock-type devices with varying functional
differences as compared to the Akins Accelerator. Final Rule at 66,514; see Am. Compl. at 6.
Based largely on ATF’s hasty conclusion that “the devices did not rely on internal springs or
similar mechanical parts to channel recoil energy,” ATF concluded that those other bump-stock-
type devices did not meet the definition of machinegun. See Final Rule at 66,514, 66,518; see
also Am. Compl. at 6. However, ATF concurrently concluded that other types of trigger
actuators, two-stage triggers, and other devices were in fact illegal machineguns under 18 U.S.C.
§ 922(o) based on its interpretation of “single pull of the trigger.” Final Rule at 66,517–18.
B. Issuance of the Final Rule
In the wake of the deadly mass shooting in Las Vegas, President Trump issued the Bump
Stock Memorandum in light of the disparity in ATF’s classifications of bump stocks and related
devices. See generally Final Rule. In response, ATF began reviewing its prior classification
6
The inventor of the Akins Accelerator challenged ATF’s classification decision of the
Akins Accelerator as a machinegun in the United States District Court for the Middle District of
Florida, claiming that ATF’s decision was arbitrary and capricious under the Administrative
Procedure Act. Akins v. United States, No. 08-988, slip op. at 7–8 (M.D. Fla. Sept. 23, 2008),
aff’d, 312 F. App’x 197 (11th Cir. 2009). The District Court rejected plaintiff’s argument,
finding that ATF demonstrated a “reasoned analysis” for its new interpretation and application,
including the need to “protect the public from dangerous firearms.” Id. at 6. The United States
Court of Appeals for the Eleventh Circuit affirmed, holding that the “interpretation by [ATF] of
the phrase ‘single function of the trigger’ means a ‘single pull of the trigger’ is consonant with
the statute and its legislative history.” Akins v. United States, 312 Fed. Appx. at 200.
5
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decisions. See generally id. ATF ultimately determined that its past classifications and
conclusions “did not reflect the best interpretation of ‘machinegun’ under the NFA and GCA,”
and that the “[d]ecisions issued during that time did not include extensive legal analysis relating
to the definition of ‘machinegun.’” Id. at 66,514. Accordingly, ATF promulgated what is now
the Final Rule to “bring clarity to the definition of ‘machinegun’—specifically with respect to
the terms ‘automatically’ and ‘single function of the trigger,’ as those terms are used to define
‘machinegun.’” Id.
First, and consistent with its position since 2006, ATF formally defined the phrase
“single function of the trigger” to mean “a single pull of the trigger and analogous motions.”
E.g., 27 C.F.R. § 447.11; see Final Rule at 66,518. Next, ATF interpreted the modifying term
“automatically” to mean “as the result of a self-acting or self-regulating mechanism that allows
the firing of multiple rounds through a single pull of the trigger,” which reflects the ordinary
meaning of that term when Congress enacted the NFA in 1934. E.g., 27 C.F.R. § 447.11; see
Final Rule at 66,519. Finally, ATF clarified that the definition of “machinegun”:
includes a bump-stock-type device, i.e., a device that allows a semi-automatic

firearm to shoot more than one shot with a single pull of the trigger by harnessing
the recoil energy of the semi-automatic firearm to which it is affixed so that the
trigger resets and continues firing without additional physical manipulation of the
trigger by the shooter.
E.g., 27 C.F.R. § 447.11; see Final Rule at 66,515, 66,519. Upon publication of the Final Rule,
these three amended definitions were incorporated into ATF’s regulations at 27 C.F.R. §§
447.11, 478.11, and 447.11. These definitions allowed ATF to further the underlying policy
goals of the NFA and GCA, key statutes through which Congress sought to increase public
safety after it had “determined that machineguns were a public safety threat.” See, e.g., Final
Rule at 66,529. Thus, in promulgating the Final Rule, ATF sought to fulfill the Congressional
goal of increased public safety by ensuring that all “devices that satisfy the statutory definition of
‘machinegun’ [are classified] as machineguns.” Id. at 66,529, 66,537 (“This rule is a significant
regulatory action that clarifies the meaning of the statutory definition of machinegun and reflects
the public safety goals of the NFA and GCA.”).
ATF began its efforts to fulfill its understanding of the NFA and GCA’s public safety
goals in connection with bump stocks in its NOPR, where it explained how “the Las Vegas
tragedy made ‘individuals aware that these devices exist—potentially including persons with
criminal or terrorist intentions—and made their potential to threaten public safety obvious.’” Id.
at 66,520, 66,528 (quoting NOPR at 13,447). ATF expanded upon that concern in the Final
Rule, acknowledging how the “ban also could result in less danger to first responders when
responding to incidents, because it prevents shooters from using devices that allow them to shoot
semiautomatic firearms automatically.” Id. at 66,551. ATF echoed this concern throughout the
Final Rule by repeatedly acknowledging how the revised definitions and effect of the Final Rule
“reflects the public safety goals of those statutes.” See, e.g., id. at 66,520, 66,522, 66,529.
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II. Discussion
Plaintiffs claim they were deprived of ownership and all economic value of their property
when they disposed of their bump stocks pursuant to the Final Rule, and that the effect of the
Final Rule resulted in a Fifth Amendment Taking. Pls.’ Resp. at 1–2. For the reasons set forth
below, the Court finds that the Final Rule’s mandate to surrender or destroy bump stocks does
not satisfy the public use requirement under a Fifth Amendment Takings analysis, and that ATF
appropriately acted within the confines of the police power.
A. Standard of Review
The Court will dismiss a case under RCFC 12(b)(6) “when the facts asserted by the
claimant do not entitle him to a legal remedy.” Spectre Corp. v. United States, 132 Fed. Cl. 626,
628 (2017) (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)). In
reviewing a motion to dismiss for failure to state a claim, the Court “must accept as true all the
factual allegations in the complaint . . . and [] must indulge all reasonable inferences in favor of
the non-movant.” Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001)
(citations omitted). The Court need not, however, accept legal conclusions “cast in the form of
factual allegations,” and will grant a motion to dismiss when faced with conclusory allegations
that lack supporting facts, as “a formulaic recitation of the elements of a cause of action” alone
will not withstand a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Akins, 82 Fed. Cl. at 622.
This Court will grant a motion to dismiss when a plaintiff’s Fifth Amendment Takings
claim fails to assert “the kind of property right that could be the subject of a taking claim,” or
when the government validly exercises its limited authority under the police power doctrine.
Mitchell Arms v. United States, 7 F.3d 212, 213 (Fed. Cir. 1993); Akins, 82 Fed. Cl. at 623.
Thus, in order to prevail on a motion to dismiss in the context of a takings claim, a plaintiff must
demonstrate it has a protected property interest, and, separately, that said property interest was
taken for a “public use” and was not seized or retained pursuant to a valid exercise of the
government’s police power. Property taken by the government for private use, for example
redistribution to other private persons, does not escape the Fifth Amendment’s protections,
though injunctive rather than compensatory relief might be the remedy. Carole Media LLC v.
N.J. Transit Co., 550 F.3d 302, 308 (3d Cir. 2008) (“A plaintiff that proves that a government
entity has taken its property for a private, not a public, use is entitled to an injunction against the
unconstitutional taking, not simply compensation.”).
B. Fifth Amendment Takings Claims
The Takings Clause of the Fifth Amendment of the Constitution provides: “[N]or shall
private property be taken for public use without just compensation.” U.S. Const. amend. V.
When alleging a takings claim, a plaintiff “must demonstrate that they have a property interest to
assert and that the government physically or by regulation infringed on that interest for public
use.” Craig Patty & Craig Thomas Expeditors, LLC v. United States, 136 Fed. Cl. 211, 214
(2018). Thus, to bring a successful takings claim, the plaintiff must satisfy both the public use
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and protected property interest requirements under the Fifth Amendment. Amerisource Corp. v.
United States, 525 F.3d 1149, 1152 (Fed. Cir. 2008); see Mitchell Arms, 7 F.3d at 215, 217.
It is a well-established principle that, when a plaintiff alleges a physical taking, the

“nature of the [government’s] action is critical in [a] takings analysis.” See, e.g., Lucas v. S.C.
Coastal Council, 505 U.S. 1003 (1992). Indeed, the Supreme Court has long-held that a
“prohibition simply upon the use of property for purposes that are declared, by valid legislation,
to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be
deemed a taking or an appropriation of property for the public benefit.” Mugler v. Kansas, 123
U.S. 623, 668–69 (1887). That principle exists in large part because the “government hardly
could go on if to some extent values incident to property could not be diminished without paying
for every such change in the general law.” Penn. Coal Co. v. Mahon, 260 U.S. 393, 414 (1922).
Courts have construed the text of the Takings Clause to mean that only those whose
property has been “taken for a public use” are entitled to compensation. Amerisource Corp., 525
F.3d at 1152; Akins, 82 Fed. Cl. at 622. Though the Takings Clause itself does not specify the
exact grounds of public use “that trigger the just compensation requirement,” the courts have
consistently found that property is not taken for a “public use” when seized or retained pursuant
to the police power. Amerisource Corp., 525 F.3d at 1153; Acadia Tech., Inc. v. United States,
65 Fed. Cl. 425, 429 (2005) (“[I]f [property] is taken to prevent public harm, the government
action may be an exercise of police power.” (emphasis in original)), aff’d Acadia Technology,
Inc. v. United States, 458 F.3d 1327, 1332 (Fed. Cir. 2006); see also Tate v. District of
Columbia, 601 F.Supp.2d 132 (D.D.C. 2009). Moreover, “[t]he exercise of the police power by
the destruction of property which is itself a public nuisance, or the prohibition of its use in a
particular way, whereby its value becomes depreciated, is very different from taking property for
public use, or from depriving a person of his property without due process of law.” Mugler v.
Kansas, 123 U.S. at 668–69.
When properly exercised, the police power provides the government with the authority,
under limited circumstances, to take or require the destruction of property without compensation,
as the Takings Clause is not implicated in such limited circumstances. See, e.g., id.; see also
Craig Patty, 136 Fed. Cl. at 213–14 (“The Supreme Court has long taught that the Takings
Clause is not implicated when the government exercises its police power.”); Akins, 82 Fed. Cl. at
622–23 (finding that ATF’s requirement that owners of the Akins Accelerator remove and
surrender the recoil springs without compensation was a valid exercise of the police power).
Indeed, this Court’s predecessor, the Court of Claims, explained that “where the purpose of a
regulation which causes interference with property rights is to prevent injury to the public
welfare as opposed to merely bestowing upon the public a nonessential benefit, compensation
under the fifth amendment is not required.” Radioptics, Inc. v. United States, 223 Ct. Cl. 594
(1980); see also Allied-Gen. Nuclear Servs. v. United States, 839 F.2d 1572, 1576 (Fed. Cir.
1988) (reaching the same conclusion).
The Federal Circuit and this Court have found valid exercises of the police power where
the government seized property to enforce criminal laws, and where the seized property “was
evidence in an investigation or the object of the law enforcement action.” Amerisource Corp.,
525 F.3d at 1153–54 (holding the government validly exercised its police power when it seized
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pharmaceuticals without compensation in order to enforce criminal laws, suggesting that such
seizure was another “classic example of the government’s exercise of the police power to
condemn contraband or noxious goods.”); see Craig Patty, 136 Fed. Cl. 211 at 214–15; see also,
e.g., AmeriSource Corp., 75 Fed. Cl. at 744. In those instances, the Court upheld such exercises
of the police power because, as this Court has explained, the property was not seized “as a
convenience to the government . . . .” Craig Patty, 136 Fed. Cl. at 214–15.
Finally, Congress has consistently regulated ownership of machineguns since 1934. To

require compensation in circumstances such as these would effectively “compel the government
to regulate by purchase.” See Andrus v. Allard, 444 U.S. 51, 54 (1979) (emphasis omitted).
Though the Court is highly receptive to plaintiffs’ fairness arguments, the Court must
acknowledge that the “Government hardly could go on if to some extent values incident to
property could not be diminished without paying for every such change in the general law.” See
id. (quoting Penn. Coal Co. v. Mahon, 260 U.S. at 413).
As explained above, Congress bestowed upon ATF the authority “to investigate and
enforce criminal and regulatory violations of Federal firearms law,” including the power to
prescribe rules and regulations necessary to carry out the provisions of 18 U.S.C. §§ 921 et seq.
Def.’s MTD at 5 (citing 18 U.S.C. § 926(a), 26 U.S.C. §§ 7801(a)(2)(A), 7805(a), 28 U.S.C. §
599A(b)(1), 28 C.F.R. § 0.130(a)(1)–(2)). Acting pursuant to this authority when promulgating
the Final Rule, it is clear that ATF intended to further “the public safety goals of the NFA and
GCA” by clarifying that the definition of “machinegun” includes “bump-stock-type device[s],”
and by requiring the surrender or destruction of bump stocks within ninety days of publication of
the Final Rule. See Final Rule at 66,529, 66,537 (“This rule is a significant regulatory action that
clarifies the meaning of the statutory definition of machinegun and reflects the public safety
goals of the NFA and GCA.”). As the purpose of promulgating the Final Rule was to promote
public safety and to prevent public harm, the Court must conclude that ATF acted within the
narrow confines of the police power when it required the surrender or destruction of all bump
stocks. Accordingly, the Court grants defendant’s Motion to Dismiss.
III. Conclusion
For the foregoing reasons, defendant’s Motion to Dismiss is hereby GRANTED.

Plaintiffs’ takings claims are accordingly DISMISSED pursuant to RCFC 12(b)(6) for failure to
state a claim upon which relief can be granted. The Clerk is directed to enter judgment
consistent with this opinion and order. No costs.
IT IS SO ORDERED.
s/ Loren A. Smith
Loren A. Smith,
Senior Judge
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In the United States Court of Federal Claims
No. 19-449 C
Filed: October 24, 2019
THE MODERN SPORTSMAN,

LLC, et al.
v. JUDGMENT
THE UNITED STATES
Pursuant to the court’s Opinion and Order, filed October 23, 2019, granting defendant’s
motion to dismiss,
IT IS ORDERED AND ADJUDGED this date, pursuant to Rule 58, that plaintiffs’ taking
claims are dismissed for failure to state a claim upon which relief can be granted. No costs.
Lisa L. Reyes
Clerk of Court
By: s/ Debra L. Samler
Deputy Clerk
NOTE: As to appeal to the United States Court of Appeals for the Federal Circuit, 60 days from
this date, see RCFC 58.1, re number of copies and listing of all plaintiffs. Filing fee is $505.00.
Appx0010
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 30th day of January, 2020, I caused
this Brief of Appellants to be filed electronically with the Clerk of the
Court using the CM/ECF System, which will send notice of such filing
to the following registered CM/ECF users:
Nathanael Yale
DEPARTMENT OF JUSTICE
Ben Franklin Station
Post Office Box 480
Washington, DC 20044
(202) 616-0464
Counsel for Appellee
/s/ Adam M. Riley

Counsel for Appellants
CERTIFICATE OF COMPLIANCE
1. This brief complies with type-volume limits because, excluding the

parts of the document exempted by Fed. R. App. R. 32(f) (cover
page, disclosure statement, table of contents, table of citations,
statement regarding oral argument, signature block, certificates of
counsel, addendum, attachments):
[ X ] this brief contains [7,550] words.
[ ] this brief uses a monospaced type and contains [state the

number of] lines of text.
2. This brief complies with the typeface and type style requirements
because:
[ X ] this brief has been prepared in a proportionally spaced

typeface using [Microsoft Word 2016] in [14pt Century
Schoolbook]; or
[ ] this brief has been prepared in a monospaced typeface using

[state name and version of word processing program] with [state
number of characters per inch and name of type style].
Dated: January 30, 2020 /s/ Adam M. Riley

Counsel for Appellants

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Case: 20-1107 Document: 11 Page: 1 Filed: 01/30/2020

THE MODERN SPORTSMAN, LLC, RW ARMS, LTD.,

APPEAL FROM THE UNITED STATES COURT

Counsel for Plaintiffs – Appellants

Counsel for the:

2. Name of Real Party in interest 3. Parent corporations and

11/15/2019 /s/ Adam M. Riley

Please Note: All questions must be answered Adam M. Riley

cc: Nathanael B. Yale

TABLE OF AUTHORITIES ..................................................................... iv

STATEMENT OF RELATED CASES ...................................................... 1

STATEMENT OF SUBJECT MATTER JURISDICTION ....................... 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW ....................... 2

STATEMENT OF THE CASE .................................................................. 2

STATEMENT OF FACTS ......................................................................... 3

SUMMARY OF THE ARGUMENT .......................................................... 6

I. The Final Rule took Plaintiffs’ property for “public use”

A. The Supreme Court’s early “police powers” cases

B. Bennis v. Michigan and subsequent federal circuit

1. When private property is taken by

2. The Final Rule was a legislative act, not an

C. Fifth Amendment analyses of state law bans on

II. The Government’s Final Rule requiring surrender or

A. The Government does not escape liability for a

B. Horne makes no exception from categorical

C. Government “use” of taken property is not a

III. Even under a regulatory takings analysis, the Final

CERTIFICATE OF FILING AND SERVICE

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