In our Mock v. Garland ATF Pistol Brace Rule Lawsuit, the District Court has issued its decision and VACATED THE RULE!

PISCTOL BRACE RULE IS VACATED AND NOT VALID!

COURT COMPELS INSURANCE COMPANY TO PROVIDE COVERAGE FOR SHOOTING RANGE SUICIDE LITIGATION   A Delaware court recently ruled in favor of a shooting range, finding that its insurance liability policy covers claims arising from the range’s rental of a firearm. The court disagreed with the defendant insurance company that a “Rental of Sporting Equipment Exclusion” was permissible grounds to deny coverage under the policy. The case arises from a customer’s suicide at the Noble Eagle range in Delaware. The customer rented a firearm from the shooting range and used it to commit suicide. The customer’s family subsequently filed a lawsuit against the shooting range, alleging claims for negligence, negligent entrustment, and negligent training and supervision. But when Noble Eagle submitted the claim to its insurance company, coverage was denied, meaning it would not even provide a defense, pursuant to a “Rental of Sporting Equipment Exclusion.” Noble Eagle filed suit against its insurer seeking an order requiring it to provide a defense and indemnify it in the lawsuit brought by the family.   The “Rental of Sporting Equipment Exclusion” of the insurance policy provided, in relevant part, “it is understood and agreed that this policy specifically excludes and does not extend to or provide coverage, indemnity, or defense costs for bodily injury or property damage arising out of the use of sporting equipment rented out by the insured.” Noble Eagle argued that the Exclusion was ambiguous because it did not define “sporting equipment” and, therefore, it is unclear whether it applied to rental firearms. The insurer argued that the provision was clear and unambiguous, and that the plain and ordinary definition of sporting equipment encompasses firearms. The court agreed with Noble Eagle that the provision was ambiguous, holding that it “cannot conclude all firearms are unequivocally and definitionally ‘sporting equipment.’” As such, the court granted summary judgment in favor of Noble Eagle and ordered the insurer to provide defense and indemnity for the claims alleged against Noble Eagle arising from the suicide.   This case is an important reminder to all firearm industry members to pay attention to and read all common insurance policy exclusions that could provide a basis for the denial of coverage. In addition to the Rental of Sporting Equipment Exclusion at issue in the Noble Eagle case, some other typical exclusions in insurance policies include the Assault and Battery Exclusion, the Violation-of-Law exclusion,  and even a Liquor Liability Exclusion, which may apply to certain shooting clubs and ranges. All industry members should discuss these issues with their insurance brokers, read these exclusions and know the potential effects (what type of claim might be excluded). This case also teaches a valuable lesson that all is not lost if an insurer initially disclaims coverage for an occurrence. If you believe an insurance policy provides coverage despite a disclaimer, there is a viable path to obtain coverage through the courts. Every case is different and will likely turn on the factual circumstances at issue, but it is important to remember that, when there is ambiguity in an insurance policy, the language is generally construed against the insurance company.   Shooting ranges and dealers should also be mindful that they have a duty not to sell or rent firearms to patrons whom they know or should know are likely to use the firearm to harm themselves or others. Renzulli Law Firm consults with dealers and shooting ranges nationally on best practices to ensure that policies and practices are applied to exceed the standard of care and create a safer environment. In addition, the NSSF has partnered with the American Foundation for Suicide Prevention and they are a great resource for these issues.   Renzulli Law Firm continues to monitor firearm litigation across the United States. If you have any questions about firearm industry insurance policies, litigation, or best practices for a shooting range, please contact John F. Renzulli or Christopher Renzulli.

FEDERAL COURT IN TEXAS GRANTS PRELIMINARY INJUNCTION PREVENTING ATF FROM ENFORCING NEW “ENGAGED IN THE BUSINESS” RULE   As RLF previously reported, on April 19, 2024, the ATF published a Final Rule regarding the definition of “engaged in the business” as a firearms dealer. The Final Rule, which went into effect on May 20, 2024, significantly expands the definition of who is required to have a federal firearms license and who is considered to be engaged in the business as a firearms dealer. The penalty for dealing in firearms without a license is up to five years in prison, a fine up to $250,000, or both, and the firearms involved or used are subject to seizure and forfeiture. Thus, the stakes are high if a person or entity violates the Final Rule. The ATF recently published a Guide on this issue, which states, “even if a person sold only a few firearms, or only a single firearm transaction was completed, if the person also represented to others a willingness and ability to purchase more firearms for resale, they would likely be engaged in the business.”   Three separate lawsuits were filed in different federal courts challenging the constitutionality of the Final Rule. This week, the United States District Court for the Northern District of Texas granted the Plaintiffs’ Motion for a Preliminary Injunction (expanding upon a previously issued Temporary Restraining Order), which, effective immediately, prohibits the ATF from enforcing the Final Rule against members of Gun Owners of America, Inc., Gun Owners Foundation, Tennessee Firearms Association, Virginia Citizens Defense League, and residents of Texas, Utah, Louisiana, and Mississippi. The ATF, however, can still enforce the Final Rule against any other individuals or entities that are not included in this list.   The court reasoned that the Plaintiffs would suffer irreparable injury absent an injunction, particularly due to economic costs that would inevitably occur, as well as the civil and criminal enforcement actions that would ensue for engaging in conduct that the Bipartisan Safer Communities Act (“BSCA”) permits, but the Final Rule “impermissibly forbids.” For example, the Final Rule asserts that there is no minimum number of firearms an individual or entity must sell in order to be considered engaged in the business. However, the BSCA contains its own definition of being engaged in the business, which significantly differs from the definition in the Final Rule. In addition, the Final Rule suggests that profit has no bearing upon whether one is “engaged in the business.” The BSCA, conversely, differentiates an attempt to obtain pecuniary gain, from improving or liquidating a personal firearms collection. The court’s decision memorialized every contradiction and inconsistency between the Final Rule and the BSCA.  The next step in this litigation is likely an appeal to the U.S. Court of Appeals for the Fifth Circuit, which has been notably averse to the ATF’s overreach in the area of firearms regulation.   The Northern District of Texas also issued a decision this week against the ATF in a case challenging the ATF’s “Pistol Brace” Rule, which, among other things, sets forth “when a device marketed as a stabilizing brace turns a pistol or handgun into a rifle.” Plaintiffs challenged this Final Rule on statutory and constitutional grounds. Initially, Plaintiffs’ motion for a preliminary injunction was denied on the basis that they failed to demonstrate a likelihood of success on the merits, but the case was appealed, and the United States Court of Appeals for the Fifth Circuit reversed the decision. The Fifth Circuit reasoned that the Final Rule was not a logical outgrowth of the Proposed Rule and deemed this a monumental and prejudicial error. The Fifth Circuit remanded the case back to the Northern District with specific instruction to assess certain factors of Plaintiffs’ Preliminary Injunction. The Northern District held that the Final Rule violated the Administrative Procedure Act, substantively and procedurally. The Court ruled that the proper remedy was to vacate the Final Rule in its entirety. In fact, the Court deemed the illegitimate agency action void ab initio (from the beginning).   Renzulli Law Firm, LLP will continue to monitor the three cases challenging the ATF’s Final Rule and other challenges to firearm related statutes and regulations around the country. If you have any questions about the ATF’s Final Rule or these legal challenges, please contact John F. Renzulli or Christopher Renzulli.

Albuquerque Man Sentenced for Federal Firearm Offenses

Monday, June 10, 2024Share

For Immediate Release

U.S. Attorney’s Office, District of New Mexico

ALBUQUERQUE – Albuquerque man sentenced to 66 months in prison after pleading guilty to federal charges arising from the armed robbery of a Federal Firearms Licensee in Albuquerque in 2022.

There is no parole in the federal system.

According to court documents, on April 29, 2022, special agents from the ATF were notified of an armed robbery that occurred the previous day at the Big 5 Sporting Goods Federal Firearms Licensee (FFL) located at 2720 San Mateo Blvd. NE in Albuquerque.

According to employees, Dawayne Yates, 53, entered the store and requested to inspect a rifle. After confirming his identity, an employee handed Yates a Ruger Mini-14 rifle. Yates then pulled out a handgun, pointed it at the employee, and demanded another rifle. Fearing for her life, the employee gave Yates an Dickinson, model XX3D-M-2, 12-gauge shotgun.

Yates stole both firearms, placing them in a gun case he took from the store, and fled in a vehicle with no license plate.

Fingerprint evidence from the crime scene matched Yates. A victim identified him from a photo lineup. On May 2nd, Yates was arrested at a local motel, where police recovered:

• A 9mm Taurus pistol matching the description of the gun used in the robbery
• A .22 caliber Remington rifle
• Ammunition
• Body armor
• Suspected fentanyl pills

The stolen firearms from Big 5 were not recovered. Yates has prior felony convictions prohibiting him from possessing firearms or ammunition.

After completing his term of imprisonment, Yates will be required to serve five years of supervised release.

U.S. Attorney Alexander M.M. Uballez and Brendan Iber, Special Agent in Charge of the Phoenix Field Division of the Bureau of Alcohol, Tobacco, Firearms and Explosives, made the announcement today.

The Bureau of Alcohol, Tobacco, Firearms and Explosives investigated this case with assistance from the Albuquerque Police Department. Assistant United States Attorney Patrick E. Cordova prosecuted the case.

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Updated June 10, 2024

PRESS RELEASE

Albuquerque Man Pleads Guilty to Manufacturing and Selling Machinegun Conversion Devices

Wednesday, June 12, 2024Share

For Immediate Release

U.S. Attorney’s Office, District of New Mexico

ALBUQUERQUE – An Albuquerque man pleaded guilty in federal court to engaging in the business of dealing firearms without a license and possession of a machine gun conversion device.

According to court documents, in December 2022, the ATF identified an Instagram user as possibly being in possession of and selling illegal machine gun conversion devices, which modify firearms to make them fire fully automatic. The ATF identified the user as Joe Jasso, 20, by the distinctive tattoo on his hand.

In January 2023, the account was deleted.

A new Instagram account was identified by the ATF in January 2023, which appeared to belong to Jasso based on the same hand tattoos being visible on posts on the account.

On February 3, 2023, undercover detectives from the Albuquerque Police Department contacted Jasso through Instagram and set up a controlled purchase of machine gun conversion devices from Jasso and his mother, Rachael Jasso. During the transaction, Jasso explained to the undercover detective how to install the conversion device onto a firearm and confirmed that it would allow the firearm to shoot fully automatic. Jasso also offered to obtain an assault rifle auto sear to sell to the undercover officer.

On February 16, 2023, federal law enforcement agents and local law enforcement executed a search warrant at Jasso’s residence in Albuquerque. Inside the home, law enforcement located and seized:

• Approximately ten firearms,
• Five machine gun conversion devices,
• A large amount of ammunition,
• Numerous ammunition magazines (both loaded and unloaded), and
• A 3D printer.

As part of his guilty plea, Jasso admitted he knew the conversion devices met the federal definition of a firearm and that he did not have a license to engage in the business of selling firearms.

The Court ordered that Jasso remain in custody pending sentencing, which has not been scheduled.

At sentencing, Jasso faces up to 10 years in prison. Upon his release from prison, Jasso will be subject to up to three years of supervised release.

Jasso’s co-defendant, Rachel Jasso, is currently scheduled to stand trial on July 8, 2024.

U.S. Attorney Alexander M.M. Uballez and Brendan Iber, Special Agent in Charge of the Phoenix Field Division of the Bureau of Alcohol, Tobacco, Firearms and Explosives, made the announcement today.

The Bureau of Alcohol, Tobacco, Firearms and Explosives investigated this case with assistance from the Albuquerque Police Department. Assistant U.S. Attorney Samuel A. Hurtado is prosecuting the case.

Machine gun conversion devices and auto sears are illegal devices designed to modify a semi-automatic firearm so it is capable of fully automatic fire, that is, continuous firing with a single trigger pull. The possession, manufacture, and/or sale of machine gun conversion devices without proper licensing is a federal offense punishable by severe penalties, including up to 10 years in prison and fines up to $250,000. The use of machinegun conversion devices poses a significant public safety risk, as they transform semi-automatic firearms into dangerous machine guns capable of causing catastrophic harm.

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Updated June 12, 2024

ABQ GUNS IS PROUD TO HELP OUR GOOD FRIEND LINDSEY MCMULLEN GOFUNDME EFFORTS

WE ARE DONATING ALL PROCEEDS FOR THE NEW ABQ GUNS T-SHIRT DESIGN

WE ARE ASKING FOR A $10.00 OR MORE DONATION FOR EACH SHIRT.

In June of 2021, Lindsey started having right side numbness of her entire body. After being taken to the ER and no scans done, the doctor wrote it off and said to see her primary care. The primary care doctor referred her to neurology, where it was found through an EEG that there was sharp brain activity in December 2021. She was referred to a neurosurgeon, which identified through an MRI a grade 2 astrocytoma glioma in February 2022. In March of 2022, Lindsey underwent an awake craniotomy, which removed 40% of the tumor. There were several complications, and the biopsy came back as cancerous. The tumor being a grade 2 and slow growing, Lindsey and Alec had decided to forego treatment for the time being. During this time, they had their daughter Siena during a high risk pregnancy with multiple grand mal seizures. 3 months after Siena was born, Lindsey had an MRI which showed that the tumor was growing and decided to start seeking treatment. Alec, Lindsey and Siena went out to Houston to MD Anderson to see about getting Proton Therapy Radiation, and after a month battle finally got in. Starting November 6th, Lindsey has undergone 28 radiation treatments at the Proton Center in Houston and will return to Houston for an MRI in January to see how successful treatment was. She will continue following with MD Anderson every few month for the foreseeable future.

We have setup this GoFundMe to help Alec, Lindsey and Siena to help fund Proton Radiation Therapy, as it is an extremely expensive and specialized treatment. There are only 30 $100 million proton machines in the US, and the only radiation treatment that specializes in saving eloquent tissue in the brain. They ask for continued prayers and are extremely appreciative of any and all financial contributions.

PLEASE DONATE TO LINDSEY’S MEDICAL EXPENCES

Democrats Turned New Mexico into the Most Dangerous State in the Nation

Did you know?   New Mexico’s Democratic leadership has hit another milestone for the worst!   >>>New Mexico is officially the #1 most dangerous state in America, according to a ranking by U.S. News & World Report.