How Trump 2024 is Shaping Section Three of the Fourteenth Amendment

*Tyler Hueffmeier

I. Introduction                                             

Donald Trump’s 2024 presidential run may be unconstitutional. Section Three of the Fourteenth Amendment states that no “elector of President and Vice President . . . shall have engaged in insurrection or rebellion against” the United States.[1] Trump’s actions on January 6, 2021, specifically his efforts to refuse to count electoral votes via the vice president and through fomenting and inciting a mob, arguably fulfill this criterion.[2]

Given this, the question is how exactly and who exactly determines whether Trump’s 2024 campaign is unconstitutional based on Section Three. The answer is any state election official. No action is necessary to “activate” Section Three.[3] It is simply a condition that must be met for one to become President. Because the Fourteenth Amendment is self-enforcing, state electoral officials already have the authority to simply remove Donald Trump from the ballot.[4] This would be a procedural, as opposed to a punitive, measure, similar to what would occur if Donald Trump was, for example, under the age of 35, which similarly disqualifies him from the office.[5]

II. Litigation

Although the Fourteenth Amendment is self-enforcing, the controversy has already spawned litigation. Plaintiffs hoping to remove trump from the ballot brought suit in Michigan, Minnesota, Florida, New Hampshire, and Arizona.[6] In Michigan, the trial court refused to take Trump off the ballot, finding this a question more appropriate for Congress.[7] In Minnesota, the court refused to take Trump off the primary ballot.[8] They argued that this case is ripe, as Section Three only bars someone from becoming President, not from becoming the primary candidate of a political party.[9] In Florida, the court found that the plaintiff, a private citizen, did not have standing “as the injuries alleged were not cognizable and not particular to them.”[10] In New Hampshire, the court found that Republican presidential candidate John Anthony Castro also lacks standing.[11] Castro argued that he would lose out on potential funding for his campaign if Trump was allowed to run, but the court found no “political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.”[12] Castro has filed suit in a large number of other states as well, but those cases have yet to gain traction.[13]

Trump has been removed from the primary ballot in Colorado,[14] Maine,[15] and most likely more states to come based on Section Three of the Fourteenth Amendment.

III. Potential Impacts

This litigation could potentially result in the legitimate removal of Trump from the ballot in all fifty states. New Mexico residents have already used Section Three to disqualify County Commissioner Couy Griffin for his participation in January 6th.[16] The court found that Griffin engaged in insurrection or rebellion against the United States because he “appeared at a Stop the Steal rally in Albuquerque along with the New Mexico Civil Guard” and “was a featured speaker on a multi-city bus tour to Washington DC.”[17] On this tour, his goal “was to rally and inflame crowds and recruit them to come to Washington DC” on January 6th.[18] If a court finds Trump was as involved as Griffin in the January 6th attack on the Capitol, it could very well disqualify him from holding office. However, of the nine politicians that were accused in court of violating Section Three due to their involvement with January 6th, courts have only chosen to bar Griffin from office.[19]

Another possibility is that, much like Representative Greene, Trump’s actions will be too far removed from the incident for him to be disqualified. Representative Greene is the representative for Georgia’s 14th district in the House of Representatives. During the January 6th attack, Representative Greene posted a video on social media showing support for the participants.[20] The court found this evidence insufficient to establish that Representative Greene violated the Fourteenth Amendment.[21] The question becomes whether Trump’s actions are more akin to Griffin’s active recruiting or closer to Representative Greene’s passive support.

This question is moot if the courts decide that Section Three does not apply to the President at all.[22] The text of the amendment simply refers to the “elector of the President and the Vice President[.]”[23] Once could read this as referring merely to the electoral college as opposed to the president or presidential candidates themself.

The courts could also choose to uphold the Griffin decision from 1869.[24] Chief Justice Salmon Chase wrote this opinion, though not in his capacity as Chief Justice. He was filling in for a circuit court justice at the time. In this opinion, Justice Salmon Chase claimed that any action under Section Three had to be authorized by direct legislation from Congress.[25] He based this claim on Section Five of the Fourteenth Amendment, which states “Congress shall have the power to enforce, by appropriate legislation, the provision of this article.”[26] Recently, an Arizona Superior Court cited Griffin as its basis for dismissing Section Three claims against three politicians who supported the events of January 6th.[27] Griffin has been vigorously challenged by legal scholars such as William Baude and Micheal Stokes Paulsen in their article “The Sweep and Force of Section Three.”[28] They argue that the plain reading of the Amendment suggests that it is self-executing.[29] Baude and Paulsen go on to argue that the Griffin decision focuses too much on what the drafters of the Amendment intended as opposed to focusing on the text of the Amendment itself.[30] However, Griffin remains good law, so there is doubt on whether Section Three is truly self-executing.

The courts could also keep Trump on the ballot by re-interpreting the 1872 Amnesty Act. The Amnesty Act listed the “‘political disabilities imposed by’ Section Three of the Fourteenth Amendment ‘from all persons whomsoever[.]’”[31] A North Carolina District Court ruled that the Amnesty Act gave Senator Cawthorn blanket protection from Section Three.[32] Like Representative Greene, Senator Cawthorn supported the events of January 6th live over social media. Senator Cawthron also spoke at the January 6th rally at the Capitol. The Fourth Circuit overturned the decision giving Senator Cawthorn blanket immunity based on the 1872 Amnesty Act.[33] The Fourth Circuit claimed that the Act did not apply to any crimes committed after its enactment.[34] If the Supreme Court hears this case, it could overturn the Fourth Circuit’s decision, effectively defanging Section Three.

IV. Conclusion

The ultimate fate of Trump in regards to Section Three of the Fourteenth Amendment is unclear. What is clear however is that the scope of Section Three of the Fourteenth Amendment remains undefined. Some theories, such as the 1872 Amnesty Act approach, would strip Section Three of its power entirely. Others, such as the 1869 Griffin case approach, would severely limit its power. Others, such as the 2022 Griffin case, threaten to give the section enormous power, turning it into a political tool to remove candidates before the race even starts. The cases arising over the next few years will decide what Section Three ultimately becomes.

*Tyler Hueffmeier is a second-year evening student at the University Baltimore School of Law. Tyler received a Bachelor’s in Electronic Media and Film from Towson University. Before law school, he used this degree to work as a Social Media Intern at Jones Robb PLLC. Tyler is currently a Staff Editor for the University of Baltimore Law Review.

[1] U.S. Const. amend. XIV, § 3.

[2] William Baude & Micheal Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev.1, 4–5 (forthcoming 2023–24).

[3] Id. at 23.

[4] Id.

[5] Id. at 17–18.

[6] Thomas Kika, Full List of States Trying to Kick Trump Off Ballot and Where Cases Stand, Newsweek (Oct. 24, 2023, 12:56PM), https://www.newsweek.com/full-list-states-trying-kick-trump-off-ballot-where-cases-stand-1837398; Carolina Cummings, Minnesota Court Dismisses Bid to Block Trump on Primary Ballot; Leaves Door Open for General Election Challenge, CBS News Minn. (Nov. 8, 2023, 4:31 PM), https://www.cbsnews.com/minnesota/news/minnesota-supreme-court-issues-order-donald-trump-2024-ballot-case/; Order of Dismissal at 3, Caplan v. Trump, (S.D. Fla. 2023) (No. 0:23-cv-61628-RLR).

[7] Corey Williams and Nicholas Riccardi, Michigan Judge Says Trump Can Stay on Primary Ballot, Rejecting Challenge under Insurrection Clause, AP News (Nov. 8, 2023, 4:37 PM), https://apnews.com/article/trump-insurrection-14th-amendment-ballot-michigan-b2a870f98a60dffbe4c9566cfe97457c.

[8] Carolina Cummings, Minnesota Court Dismisses Bid to Block Trump on Primary Ballot; Leaves Door Open for General Election Challenge, CBS News Minn. (Nov. 8, 2023, 4:31 PM), https://www.cbsnews.com/minnesota/news/minnesota-supreme-court-issues-order-donald-trump-2024-ballot-case/.

[9] Id.

[10] Caplan v. Trump, No. 23-CV-61628, 2023 WL 6627515, at *2 (S.D. Fla. Aug. 31, 2023).

[11] KC Downey, Judge Dismisses Candidate’s Lawsuit to Keep Trump off New Hampshire Primary Ballot, WMUR (Oct. 30, 2023, 12:30 PM), https://www.wmur.com/article/new-hampshire-donald-trump-ballot-lawsuit-dismiss/45682757.

[12] Id.

[13] Kika, supra note 6.

[14] Anderson v. Griswold, 2023 WL 8770111, ¶ 257

[15] Marshal Cohen, Maine’s top election official removes Trump from 2024 primary ballot, CNN Pᴏʟɪᴛɪᴄs (Dec. 29, 2023, 10:49 AM), https://www.cnn.com/2023/12/28/politics/trump-maine-14th-amendment-ballot/index.html

[16] White v. Griffin, No. D-101-CV-2022-00473, 2022 WL 429519, at *46 (D.N.M. Sep. 6, 2022).

[17] Id. at 5.

[18] Id. at 6.

[19] Id.; Hansen v. Finchmen, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. May 9, 2022); Rowan v. Greene, No. 2222582-OSAH-SECSTATE-CE-57, (Ga. Off. of State Admin. Hearings May 6, 2022), https://sos.ga.gov/sites/default/files/2022-05/Greene-final-decision.pdf; Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022); Stencil v. Johnson, 605 F. Supp. 3d 1109, 1123 (E.D. Wis. 2022).

[20] Greene, 2022 No. 2222582, at 10–11.

[21] Id. at 19.

[22] Nicholas Riccardi, Liberal Groups Seek to Use the Constitution’s Insurrection Clause to Block Trump From 2024 Ballots, AP News (Aug. 31, 2023, 10:51 AM), https://apnews.com/article/trump-14th-amendment-insurrection-2024-election-ballot-9c5f79203109ba221b35a48e708ad725.

[23] U.S. Const. amend. XIV, § 3.

[24] In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869).

[25] Id. at 26

[26] Id.; see U.S. Const. amend. XIV, § 3, § 5; see also Hansen v. Finchem, 2022 CV 2022-004321, at *6 (Ariz. Sup. Ct. April 22, 2022).

[27] Finchem, 2022 CV 2022-004321, at *6.

[28] Baude & Paulsen, supra note 2, at 37.

[29] Id. at 39.

[30] Id. at 40–42.

[31] Cawthorn v. Amalfi, 35 F.4th 245, 248 (4th Cir. 2022) (citing Amnesty Act of 1872, 17 Stat. 142, ch. 193 (1872)).

[32] Id. at 250.

[33] Id. at 260–61.

[34] Id.

Algorithmic Accountability and the Sixth Amendment: The Right to Confront an Artificial Witness

*Dallon Danforth

“[T]he Confrontation Clause guarantees more than the right to ask questions of a live witness…”   – William J. Brennan Jr., Associate Justice of the Supreme Court of the United States of America.[1]

I. Introduction   

One day, for seemingly no reason at all, you are arrested and charged with the murder of a victim that you claim to have never met. As discovery commences, you learn that law enforcement, in the course of their investigation against you, performed DNA analysis on various samples collected from the scene of the crime.  A laboratory analyst produced a report concluding that certain forensic samples are more than hundreds of billions of times more likely to contain your DNA than that of an unrelated party. Knowing that you face life without the possibility of parole, how might you challenge the analyst’s conclusions in court? Does your decision change if the analyst is not a human being, but rather a complex, probabilistic genotyping algorithm developed by a private software company?

As improbable as this scenario appears, it was this exact series of events that ultimately lead to the conviction of New York resident, John Wakefield.[2]

II. Case Study

On May 27, 2015, John Wakefield was found guilty of murder in the first degree. During Mr. Wakefield’s trial, the state introduced evidence of DNA analysis performed by TrueAllele, an artificial intelligence algorithm developed by Cybergenetics.[3] Mr. Wakefield’s defense was severely prejudiced by the results of the DNA analysis which estimated that certain DNA samples were up to 170 quintillion times more likely to belong to Mr. Wakefield than an unrelated person of identical racial background.[4]

Prior to his trial, Mr. Wakefield moved for receipt of TrueAllele’s “source code,” citing his right to confront the witnesses brought against him under the Sixth Amendment.[5] Mr. Wakefield argued that TrueAllele represented “the functional equivalent of a laboratory analyst,” and because the report generated by that laboratory analyst was inherently testimonial, Mr. Wakefield had a Sixth Amendment right to confront TrueAllele as an expert witness against him.[6] The trial court denied the motion, finding that TrueAllele’s report was not testimonial in nature, and that any concerns regarding TrueAllele’s reliability were curable by allowing Mr. Wakefield’s counsel to cross-examine TrueAllele’s Chief Scientist and Executive Officer, Dr. Mark Perlin.[7]

After such cross-examination, Mr. Wakefield argued that Dr. Perlin’s “surrogate testimony” failed to satisfy his Sixth Amendment right, once again asserting that TrueAllele, rather than Dr. Perlin, was the actual expert witness brought against him.[8] Without TrueAllele’s source code, Mr. Wakefield argued, defense counsel could not accurately determine the reliability of TrueAllele’s methodology and, by extension, the validity of the results contained within the highly prejudicial report.[9] Following his trial, Mr. Wakefield was sentenced to life imprisonment without the possibility of parole.[10] 

Mr. Wakefield appealed his conviction, arguing that “his right to confront witnesses was violated by not having access to TrueAllele’s source code.”[11] The appellate court affirmed the conviction, noting that the “TrueAllele report was testimonial in nature since it was generated to assist the police and prosecutors,” but that TrueAllele itself was not a declarant such that the Sixth Amendment would be applicable to its algorithm.[12] Mr. Wakefield appealed once more to New York’s highest court, which affirmed both the ruling and the reasoning of the intermediate court.[13] In a concurring opinion, Judge Rivera differed from the majority by finding that Mr. Wakefield had a Sixth Amendment right to review TrueAllele’s source code, while also criticizing the trial court’s shielding of the source code as a trade secret based upon an earlier argument made by Dr. Perlin.[14] Nevertheless, Judge Rivera concluded that the error was harmless in light of the considerable evidence that otherwise implicated Mr. Wakefield’s guilt.[15]

Following his defeat in New York’s highest court, Mr. Wakefield filed for a writ of certiorari.[16] The Supreme Court of the United States denied his petition on November 21, 2022.[17]

III. Predictive Analysis

With the “current unprecedented advancements in artificial intelligence,” such as those contained in TrueAllele’s algorithm, Mr. Wakefield’s asserted right to review advanced algorithmic source codes will almost certainly be re-litigated by future defendants.[18]  Afterall, the increased use of powerful algorithmic software continues to foster novel legal issues.[19] For example, Georgia resident Randal Reid was charged with felony theft after security cameras equipped with powerful facial recognition software falsely identified Mr. Reid as a participant of the criminal event.[20] Mr. Reid, who had never set foot in the charging jurisdiction, was jailed for nearly a week before law enforcement rescinded his arrest warrant after acknowledging the error in the algorithm’s facial identification process.[21] Had Mr. Reid’s case proceeded to trial, Mr. Wakefield’s failed appeals suggest that Mr. Reid would be denied access to the source codes utilized by the facial recognition technology used to implicate his guilt.[22]

By outlining the competing interests that arise when courts attempt to apply the Sixth Amendment to an artificial witness, Judge Rivera’s concurrence reveals a powerful dichotomy. On one hand, “[t]rade secrets can be used to protect almost everything related to software,” and algorithms like TrueAllele therefore enjoy considerable protections under the law.[23] However, shielding the source code of testimonial algorithms by appointing surrogate witnesses with a proprietary interest in that same source code does not produce the “objective, unbiased review” necessary for the proper administration of justice.[24] Because the right to confront and cross-examine witnesses is “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal,” the confrontation of advanced algorithms via surrogate testimony places at odds the unstoppable force of the Sixth Amendment with the immovable object of trade secret protections.[25] Of course, both interests, compelling as they are, cannot indefinitely prevail against the other, and courts will soon be tasked with appointing a victor. As New York’s intermediate court previously noted, “[g]iven the exponential growth of technologies such as artificial intelligence, to embrace the future we must assess, and perhaps reassess, the constitutional requirements . . . that arise where law and modern science collide.”[26]

IV. Conclusion

Given the rapid rate at which advanced software algorithms continue to permeate everyday life, such technology will soon strain the Sixth Amendment in an unprecedented manner. As future defendants come to relitigate Mr. Wakefield’s novel argument, presiding courts will further weigh trade secret protections against the authority of the Sixth Amendment’s Confrontation Clause.

*Dallon Danforth is a second-year student at the University of Baltimore School of Law. He also serves as the President of the Caroll Inn Chapter of the Phi Delta Phi International Legal Honor Society and is a teaching assistant for Professor Matthew Lindsay’s Constitutional Law course. He would like to thank the Law Review staff for the opportunity to publish this piece and his friends for their never-ending support.

[1] United States v. Owens, 484 U.S. 554, 572 (1988) (Brennan, J., dissenting).

[2] People v. Wakefield, 107 N.Y.S.3d 487, 491 (N.Y. App. Div. 2019) (“A jury trial was held, after which defendant was convicted of murder in the first degree and robbery in the first degree.”).

[3] Id. “[TrueAllele] . . .  eliminat[es] all but the most rudimentary of human participation.” People v. Wakefield, 38 N.Y.3d 367, 387 (2022).

[4] “Specifically, TrueAllele concluded that it was 5.88 billion times more probable that defendant was a contributor to the mixture on the amplifier cord . . .  that it was 170 quintillion times more probable that defendant was a contributor to the mixture on the outside rear shirt collar . . .  that it was 303 billion times more probable that defendant was a contributor to the mixture on the outside front shirt collar . . .  and that it was 56.1 million times more probable that defendant was a contributor to the mixture on the victim’s dorsal . . . . ” Wakefield, 38 N.Y.3d at 373.

[5] Id. at 378; see also Rod Dixon, When Efforts to Conceal May Actually Reveal: Whether First Amendment Protection of Encryption Source Code and the Open Source Movement Support Re-Drawing the Constitutional Line Between the First Amendment and Copyright, 1 Colum. Sci. & Tech. L. Rev. 3, 55 (2000) (“[S]ource code is the text of a program written in a ‘high-level’ programming language, such as ‘PASCAL’ or ‘C.’”).

[6] Wakefield, 38 N.Y.3d at 378.

[7] Id. at 374, 378.

[8] Id. at 378.

[9] See id.

[10] Id. at 394 (Rivera, J., concurring).

[11] People v. Wakefield, 175 A.D.3d 158, 165 (N.Y. App. Div. 2019) (acknowledging that “[t]his argument raises legitimate and substantial questions concerning due process as impacted by cutting-edge science.”).

[12] Id. at 168–69.

[13] Wakefield, 38 N.Y.3d at 386.

[14] Id. at 387.

[15] Id. at 394.

[16] Docket Search, Sup. Ct. of the U.S., https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-5588.html (last visited Sep. 3, 2023).

[17] Id.

[18] “[T]he current unprecedented advancements in artificial intelligence devices constitute a sort of ‘Fourth Industrial Revolution’ . . . . ” Thomas Belcastro, Getting on Board with Roberts: How the Business Judgment Rule Should Apply to Artificial Intelligence Devices Serving as Members of a Corporate Board, 4 Geo. L. Tech. Rev. 263, 270 (2019).

[19] See, e.g., John Simerman, JPSO Used Facial Recognition Technology to Arrest a Man. The Tech was Wrong., nola (Jan. 2, 2023), https://www.nola.com/news/crime_police/jpso-used-facial-recognition-to-arrest-a-man-it-was-wrong/article_0818361a-8886-11ed-8119-93b98ecccc8d.html; see also Arjun Sha, 18 Examples of AI You’re Using in Daily Life in 2023, Beebom (Apr. 29, 2023, 11:51 AM), https://beebom.com/examples-of-artificial-intelligence/.

[20] See generally Simerman, supra note 19 (“The case highlights the pitfalls of a technology that more law enforcement agencies are adopting across the country, even as critics point to research showing bad matches at higher rates for some populations, including Black people and women.”).

[21] Id.

[22] Id. (the law enforcement agency responsible for Mr. Reid’s arrest utilizes facial recognition algorithms developed by Clearview AI and Morphotrak).

[23] “Trade secrets can be used to protect almost everything related to software.” E. Robert Yoches, Protection of Computer Software by Patents, Trade Secrets, and Trademarks, 22 Tort & Ins. L. J. 354, 358 (1987).

[24] People v. Wakefield, 38 N.Y.3d 367, 395 (2022) (Rivera, J., concurring).

[25] Pointer v. Texas, 380 U.S. 400, 405 (1965); see also Rebecca Wexler, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System, 70 Stan. L. Rev. 1343, 1429 (2018) (“A criminal trade secret privilege would almost certainly lead to overclaiming, abuse, and the exclusion of highly probative evidence; it would also project a message that the government values intellectual property holders more than those whose life or liberty is at stake.”).

[26] People v. Wakefield, 175 A.D.3d 158, 165 (N.Y. App. Div. 2019).

Maryland Tax Sales: Change is on the way—One way, or Another

*Joshua Rodriguez

I. Introduction

In August of this year, Baltimore City resident Deana Woodward lost her home to the City’s tax sale process, likely due in part to an error by Baltimore City’s Department of Public Works.[1] Baltimore City executed Ms. Woodward’s eviction August 7, 2023, despite efforts to cease forced removals on owner-occupied tax sale properties.[2] Baltimore City’s tax sale process has garnered public criticism for several years due to its destructive impact upon the welfare of the city and its residents.[3] The City has withheld its power to execute tax sales on owner-occupied properties in recent years, but cases like Ms. Woodward’s still slip through the cracks.[4] The infamous Baltimore City tax sale system perpetuates patterns of extreme economic disparities among Baltimore neighborhoods and entrenches housing instability within the city.[5]  While Baltimore City failed to overhaul tax sales in Maryland through the legislature in the previous legislative session,[6] recent and pending case law place new pressures on our state legislators to evaluate the validity of the current system.[7]

II. Baltimore City Tax Sales and Reform Efforts

In Baltimore City, a property owner can lose their property in annual tax sale auctions as a consequence of property tax defaults as low as $750.[8] In a tax sale auction, businesses and investors bid on the properties to win a tax lien certificate.[9] The proceeds of the sale are meant to cover the tax debts owed on the properties; however, winning bids often exceed the amount of tax arrears.[10] Under the City’s tax sale scheme, the City owes the surplus amount to the property owner; however, the City rarely delivers.[11] Beyond unreturned surpluses, the City’s tax sale system results in thousands of properties annually recycled through the system without drawing a bid for sale.[12] As a broad stroke response to the troubles of tax sales, The Mayor’s Office of Baltimore City introduced a sweeping tax sale reform bill during the Maryland 2023 Legislative Session.[13] The bill failed at the “eleventh hour” in part due to unexpected budgetary pressures.[14] While the legislative resolution failed in Annapolis, the United States Supreme Court soon thereafter took up the issue of tax sales, drawing a new constitutional limit in Tyler v. Hennepin County.[15]

III. Tyler v. Hennepin County

In April 2023, the Supreme Court awarded the surplus revenue from a Minnesota tax sale of real property to the property’s prior owner, Ms. Geraldine Tyler.[16] The Supreme Court found the Minnesota tax scheme’s retention of surplus proceeds forced an unconstitutional taking, and therefore required the state to deliver the tax sale surplus to Ms. Tyler as just compensation.[17] The Court’s decision was a powerful declaration on potential implications of tax sale systems; however, in refraining to discuss tangential issues, the Court displayed caution in exploring constitutional underpinnings of tax sales.[18]

Most notably, the Court did not consider whether a government owes the equity value of real property to the property owner.[19] The Minnesota property tax system allowed for Hennepin County to sell the property outright, thereby muddying the distinction between the property’s equity value and a tax sale surplus.[20] Ms. Tyler therefore argued a property interest in the surplus was taken, and the Court limited its holding to address an interest in the surplus according to Ms. Tyler’s argument.[21] United States courts have since already cited to Tyler in forty-six opinions, as municipalities across country feel the jurisprudential waves from the Court’s new application of the Takings Clause.[22] The Court’s opinion defers the issue of takings via tax sales to state-specific interpretations by determining property interests via a localized analysis, reviewing state legal and historical precedent as a central analytical step.[23] As the Maryland legislature prepares for renewed debates around its tax sale scheme, further interpretations of Tyler v. Hennepin may inform the legislature of the constitutional bounds it must work within.[24]

IV. Nieveen and Fair and the Equity Question

The Court received the Tyler petition at the same time as two others from Nebraska, Nieveen v. TAX 106[25] and Continental Resources v. Fair.[26] While Tyler dealt with Minnesota’s surplus retention scheme, Nebraska has a surplus return system, like that of Maryland.[27] In a surplus return system, a property owner receives the surplus of a tax sale.[28] While the Court remanded Tyler with clear instructions that retention of surplus by the government was unconstitutional in light of a valid property interest in such surplus, Nieveen and Fair present the issue of whether the tax sale’s effect upon the owner’s interest in the equity value of a property also qualifies as a taking.[29] In both cases, the Supreme Court of Nebraska rejected claims that the government took the equity of the property from the owner.[30] Courts appear reluctant to address the difficult question whether a property interest exists in the equity inherent of real property.[31] Instead of forming a legal analysis for surplus return jurisdictions, the U.S. Supreme Court remanded both Nieveen and Fair for reconsideration in light of Tyler.[32] By remanding these cases to the circuits, the Court will allow further debate on the equity question through state-specific litigation.[33]

V. Conclusion

Advocates for tax sale reform in Baltimore eagerly await an opportunity to curb the crippling effects of tax sales on their city.[34] In Tyler, the Court marked a strong but indeterminate boundary, leaving constitutional questions for litigants and state legislators to sort out in the coming decades.[35] Regardless of the Maryland legislature’s course of action, change is on the way to the Maryland tax sale system—one way, or another.[36]

*Joshua R. Rodriguez is a second-year day student at the University of Baltimore School of Law. He serves as a Staff Editor for the Law Review, as Secretary for the UB Law Student Bar Association, and as a Research Assistant to Professor Robert H. Lande, Emeritus. He is also a member of UB’s Latin American Law Student Association and the Royal Graham Shannonhouse III Honor Society. Joshua has a background in international development, but has since turned his interest in economic and community development to the domestic sphere. Joshua is driven by and pursues scholarship around complex issues related to economics, wealth disparities, and justice. He encourages readers to engage in their local community or neighborhood association to learn more about housing crises in their backyard, whether that be Baltimore or beyond. 

[1] Hallie Miller, A Baltimore Woman Faces Eviction over Unpaid Water Bills from 2018, Despite State Law, Balt. Banner, (Aug. 5, 2023, 5:30 AM), https://www.thebaltimorebanner.com/community/housing/baltimore-eviction-unpaid-water-bills-NSHUPL462BALPKJMBDWFRLBBMI/.

[2] Id.

[3] Nick Thieme & Sophie Kasakove, Tax Sale Nightmare: How an Unpaid Bill Can Cost Baltimore Homeowners Thousands, Or Even Their Homes, Balt. Banner (Jan. 26, 2023, 11:10 PM), https://www.thebaltimorebanner.com/community/housing/baltimore-tax-sale-lien-auction-64APUHOPUFB6VJ4Z6IX6WC7NMU/.

[4] Miller, supra note 1.

[5] Thieme & Kakakove, supra note 3 (discussing the popular symbolic “Black Butterfly” image used to describe Baltimore City’s urban landscape; the “butterfly” refers to stretches of Baltimore City’s geography as it extends upward and outward from the city center, correlated with concentrations of minority residents, higher rates of poverty, and higher rates of housing instability).

[6] See infra notes 13–14 and accompanying text. 

[7] See infra notes 24, 31–36 and accompanying text. 

[8] Md. Code Ann., Tax–Prop. § 14-811.

[9] See Laila Milevski, How Baltimore Property Tax Sales Work: An Illustrated Guide, Balt. Banner (Jan. 26, 2023, 8:50 AM), https://www.thebaltimorebanner.com/community/housing/baltimore-property-tax-sale-guide-4DNWF6THQBEBTNTJM7IXVWO5NI/ (providing a succinct overview of the Baltimore City tax sale system).

[10] Sophie Kasakove & Nick Thieme, Baltimore Residents Who Lose Homes After Tax Sales Often Don’t See Excess Funds They’re Owed From Auction, Balt. Banner (Feb. 13, 2023, 3:45 PM), https://www.thebaltimorebanner.com/community/housing/baltimore-city-tax-sale-foreclosure-funds-TWQXWYNBNJGABKYCDMCFCZ7WCM/ (outlining that Baltimore City currently sits on an unclaimed $6 million tax sale surplus).

[11] Id.

[12] Mary Miller & Mac McComas, The Cost of Baltimore’s Vacant Housing, Johns Hopkins Univ. 21st Century City Initiatives (Sept. 2022), https://21cc.jhu.edu/wp-content/uploads/2022/09/the-costs-of-baltimores-vacant-housing-1.pdf.

[13] Sophie Kasakove et al., Proposal to Overhaul Tax Sale Fails to Pass After Baltimore City Pumps Breaks on Own Legislation, Balt. Banner (April 11, 2023, 4:36 PM), https://www.thebaltimorebanner.com/community/housing/baltimore-tax-sale-reform-legislation-stalled-7Y3HYTVTCFHM7GSBUGRIKRQ7AM/.

[14] Id.

[15] Tyler v. Hennepin Cnty., 598 U.S. 631, 647 (2023).

[16] Id. (“A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution . . . than she owed . . . . [She] must render unto Caesar what is Caesar’s, but no more.”).

[17] Id. at 645.

[18] Id. at 647–48.

[19] Compare Tyler, 598 U.S. at 637–43, 47 (“A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more.”) with Rafaeli, LLC v. Oakland Cnty., 505 Mich. 429, 498–99 (2020) (Viviano, J. concurring) (“The majority’s flawed interpretive methodology has led it to characterize the “property” at issue as merely the surplus proceeds from the foreclosure sale.”). See also infra note 29 and accompanying text.

[20] Rule 26(f) Report at 2, Tyler v. Hennepin Cnty., 505 F. Supp. 3d 879 (D. Minn. 2020), aff’d, 26 F.4th 789 (8th Cir. 2022), rev’d 598 U.S. 631 (2023) (No. 20-cv-889-PJS-BRT).

[21] Tyler,598 U.S. at642–43. The Court also refrained from addressing implications of an outstanding mortgage. See Tyler,598 U.S. at636–37. The Court decided to also not address Ms. Tyler’s alternative argument of unconstitutionality, that such a tax sale procedure would stand as an excessive fine. Tyler,598 U.S. at 647–48.

[22] See, e.g., Nieveen v. TAX 106, 143 S. Ct. 2580 (2023); Fair v. Cont’l Res., 143 S. Ct. 2580 (2023); Sinclair v. Meisner, No. 2:18-CV-14042-TGB-MJH, 2023 WL 3854068, at *1 (E.D. Mich. June 6, 2023); Basilis N. Stephanatos v. Wayne Township, et al., No. CV 12-1793, 2023 WL 5605564 (D.N.J. Aug. 30, 2023); Valancourt Books, LLC v. Garland, No. 21-5203, 2023 WL 5536195 (D.C. Cir. Aug. 29, 2023); Jenkins v. United States, 71 F.4th 1367 (Fed. Cir. 2023).

[23] Tyler, 598 U.S. at 638.

[24] See infra notes 31–36 and accompanying text.

[25] See Nieveen, 143 S. Ct. 2580.

[26] See Fair, 143 S. Ct. 2580.

[27] Jenna Christine Foos, State Theft in Real Property Tax Foreclosure Procedures, 54 Real Prop. Tr. & Est. L.J. 93, 99–103 (2019) (demonstrating that approximately nine states facilitate surplus retention schemes, and approximately thirty-two states including Maryland facilitate surplus return).

[28] Id. at 99–100.

[29] See Nieveen v. TAX 106, 311 Neb. 574, 589, cert. granted, judgment vacated, 143 S. Ct. 2580 (2023); Cont’l Res. v. Fair, 311 Neb. 184, 199–200, cert. granted, judgment vacated, 143 S. Ct. 2580 (2023).

[30] Nieveen, 311 Neb. at 589; Fair, 311 Neb. at 199–200.

[31] See Rafaeli, LLC v. Oakland Cnty., 505 Mich. 429, 498–99, 515 (2020) (Viviano, J. concurring) (“My analysis . . . starts at the beginning: the property owners’ preexisting interest in the real estate, or their equity . . . . Equity has better historical grounding than any novel and freestanding right to proceeds—indeed, it is the reason entitlement to proceeds may exist—and is a common enough concept that I cannot comprehend the majority’s efforts to avoid it.”).

[32] Nieveen. TAX 106, 143 S. Ct. 2580 (2023); Fair v. Cont’l Res., 143 S. Ct. 2580 (2023).

[33] See Nieveen, 143 S. Ct. at 2580; see also Fair, 143 S. Ct. at 2580.

[34] See, e.g., The Plan, Renew Baltimore, https://renewbaltimore.org/the-plan/ (last visited Sept. 5, 2023); see also, Reforming Baltimore’s Tax Sale System, HUBWest Balt. Cmty. Dev. Corp., https://www.hubwestbaltimore.org/city-tax-sale-system (last visited Sept. 5, 2023).

[35] Cf. Editorial Advisory Board, Maryland Tax Sale Process Must Change to Stop Harming Black Residents, Daily Rec. (Feb. 23, 2023, 2:34 PM), https://thedailyrecord.com/2023/02/23/tax-sale-the-supreme-court-and-maryland/ (discussing Maryland’s need for tax sale reform and the potential implications of Tyler v. Hennepin in response to the Supreme Court’s grant of certiorari); see generally supra note 27.

[36] Id.

Standing for Self-Proclaimed “Testers” – The Circuits are Split.

*Kata Kylliainen

I. What is Standing?

           Under Article III of the U.S. Constitution, federal courts only have jurisdiction over cases and controversies.[1] To determine whether a claim meets the cases and controversies requirement, the Supreme Court implemented the doctrine of standing.[2] In Lujan v. Defenders of Wildlife, the Court established three elements a plaintiff must satisfy to have standing under the Constitution.[3] The first element requires a plaintiff to have experienced an “injury in fact.”[4] An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.”[5] The injury cannot be “conjectural or hypothetical.”[6] Second, the plaintiff must show “a causal connection between the injury and the conduct complained of.”[7] Third, it “must be likely . . . that the injury will be redressed by a favorable decision.”[8] These elements ensure that “the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”[9]

II. The Circuit Split

Recently, six cases have made their way up to six different Circuits of the Federal Courts of Appeals to address the issue of whether a self-proclaimed “tester” has standing to bring a claim where the alleged injury is informational or stigmatic only.[10]  The Fourth Circuit’s decision in Laufer v. Naranda Hotels, LLC, created an even split of 3-3 between the federal courts of appeals.[11] Two plaintiffs, Owen Harty and Deborah Laufer, were both self-proclaimed “testers”, with Laufer describing herself as an “advocate of the rights of similarly situated disabled persons” with a “purpose of asserting her civil rights and monitoring, ensuring, and determining whether places of public accommodation and their websites are in compliance with the ADA.”[12] Harty and Laufer brought their claims against the owners of hotels for alleged noncompliance with provisions of the Americans with Disabilities Act (ADA).[13] The injury complained of was informational in nature.[14] For example, in one of her five lawsuits, Laufer alleged that the hotel’s violations “deprive[d] her of the information required to make meaningful choices for travel.”[15] Harty and Laufer, both disabled, visited the hotels’ websites and brought suit after finding that the websites did not comply with the ADA based on the omission of accessibility-related information.[16] Neither plaintiff had any intention of actually booking or visiting the hotels.[17] In all six cases, the district courts dismissed the plaintiffs’ claims on the grounds that they lacked standing.[18] On appeal, the Second, Fifth, and Tenth Circuits confirmed the district courts’ findings denying that testers have standing under the Lujan elements.[19] Conversely, the First, Fourth, and Eleventh Circuits have ruled in the affirmative, that such testers do have standing under Article III.[20]

The first appeal, decided in the Fifth Circuit, held that Laufer did not have standing because she failed to establish a concrete injury.[21] “She visited the [website] to see if the motel complied with the law, and nothing more.”[22] While an “inability to obtain information is sufficiently concrete to constitute injury in fact . . . when the information has some relevance to the litigant,”[23] Laufer has failed to establish such relevance because she had no concrete plans to stay at the hotel.[24] The Tenth Circuit also held that Laufer did not have standing because she did not suffer a concrete injury.[25] In evaluating Laufer’s arguments, the Tenth Circuit distinguished Laufer’s injury from the injury suffered in Havens Realty.[26] In Havens Realty, the Supreme Court held that a “tester” could sue under the Fair Housing Act.[27] However, the Havens Realty Court dealt with an injury “grounded in misrepresentation and racial animus”, a bar which Laufer did not surpass.[28] Following the holdings of the Fifth Circuit in Mann Hospitality and the Tenth Circuit in Looper, the Second Circuit also found that Harty did not have standing to bring suit as a “tester” based on his failure to allege an injury in fact.[29] The court found that Harty failed to show that he had an “interest in using the information . . . beyond bringing [his] lawsuit.”[30] Thus, Harty failed to plead an injury sufficient to confer standing under Article III of the U.S. Constitution.[31]

The Eleventh Circuit broke with neighboring circuits, standing out as the first to recognize that Laufer alleged an injury in fact sufficient to withstand dismissal for lack of Article III standing.[32] The court reasoned that Laufer’s injury constituted a concrete, stigmatic injury because the emotional injury, “frustration and humiliation[,]” and “sense of isolation and segregation” as a result of the noncompliance could affect her “in a personal and individual way” making them sufficiently particularized.[33] Next, the First Circuit and the Fourth Circuit both concluded that Laufer did in fact have standing in Laufer v. Acheson Hotels, LLC and Laufer v. Naranda Hotels, LLC, respectively, regardless of the fact that she never had concrete plans to visit either hotel.[34] In looking to the Tenth’s Circuit distinguishing of Haven’s Realty, both the First and Fourth Circuits found the distinguishment to be an unnecessary measure, as Haven’s Realty confers standing when the injury in fact is a failure to obtain information, even where the individual “ha[s] no intent to use the information for anything but a lawsuit.”[35] Although racial animus was relevant as an element of the statutory violation in Haven’s Realty, the lack of purposeful discrimination against Laufer did not preclude her standing to bring suit under the ADA.[36]

III. Conclusion

Ultimately, the circuit split boils down to whether an informational injury constitutes an injury in fact sufficient to confer Article III standing.[37] Given Laufer’s status as a self-proclaimed “tester” and her appearance as the plaintiff in five of the six cases mentioned above,[38] the circuit split may continue until the Supreme Court rules on the matter. For now, Laufer has paved a path forward for herself and other self-proclaimed “testers” to bring suit against hotels they have no intention of visiting, at least in the First, Fourth, and Eleventh Circuits.[39]

*Kata Kylliainen is a second-year student at the University of Baltimore School of Law. In September, she was inducted into the Royal Graham Shannonhouse III Honor Society. At school, she is a Staff Editor on the University of Baltimore Law Review and is excited to be a law scholar for Professor Kim Wehle in the Spring of 2024. During her first-year summer, Kata worked as an intern at Wharton Levin Ehrmantraut & Klein. She is excited to return to Gallagher Evelius & Jones in May for her second-year summer associate position.

[1] U.S. Const. art. III § 2, cl. 1.

[2] Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 161 (4th Cir. 2023) (citing Carney v. Adams, 141 S. Ct. 493, 498 (2020)).

[3] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

[4] Id. at 560.

[5] Id.

[6] Id. at 560 (internal quotations and citations omitted).

[7] Id. (internal citations omitted).

[8] Id. at 561 (internal quotations and citations omitted).

[9] Laufer v. Looper, 22 F.4th 871, 876 (10th Cir. 2022) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

[10] See generally Naranda Hotels, 60 F.4th 156; Looper, 22 F.4th 871; Arpan LLC, 29 F.4th 1268; Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022); Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269 (5th Cir. 2021); Harty v. West Point Realty, Inc., 28 F.4th 435 (2nd Cir. 2022).

[11] Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 174 (4th Cir. 2023); see also Laufer v. Arpan LLC, No. 20-14846, 2023 WL 5209551, at *1 (11th Cir. Aug. 15, 2023). The opinion in Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) is moot, making the current split 3-2.

[12]  Naranda Hotels, 60 F.4th 15 at 158–59.

[13] Id at 158.

[14] Id. at 160.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] See Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022); Laufer v. Mann Hospitality, 996 F.3d 269, 273 (5th Cir. 2021); Harty v. West Point Realty, Inc., 28 F.4th 435, 445 (2nd Cir. 2022).

[20] See Naranda Hotels, 60 F.4th at 174; Laufer v. Arpan LLC, 29 F.4th at 1296–97 (11th Cir. 2022); Acheson Hotels, 50 F.4th at 278–79.

[21] Mann Hospitality, 996 F.3d at 272.

[22] Id.

[23] Id. at 273 (quoting Griffin v. Dep’t of Lab. Fed. Credit Union, 912 F.3d 649, 654 (4th Cir. 2019)).

[24]  Id.

[25]  Laufer v. Looper, 22 F.4th 871, 878 (10th Cir. 2022).

[26]  Id. at 879.

[27]  Id. at 878 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982)).

[28] Id. at 879.

[29] Harty v. West Point Realty, Inc., 28 F.4th 435, 444 (2nd Cir. 2022).

[30] Id.

[31] Id. (citing Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021)).

[32] Laufer v. Arpan LLC, 29 F.4th 1268, 1273 (11th Cir. 2022).

[33] Id. at 1274–75 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)).

[34] Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 278 (1st Cir. 2022); Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 162 (4th Cir. 2023).

[35] See Acheson Hotels, 50 F.4th at 271, 273–74; Naranda Hotels, 60 F.4th at 171–72.

[36] Naranda Hotels, 60 F.4th at 171­­–72.

[37] See id. at 174; Acheson Hotels, 50 F.4th at 278–9; Arpan LLC, 29 F.4th at 1296–97; Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021); Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022); Harty v. West Point Realty, Inc., 28 F.4th 435, 445 (2nd Cir. 2022).

[38] See Naranda Hotels, 60 F.4th at 158; Acheson Hotels, 50 F.4th at 265; Mann Hospitality, 996 F.3d at 271; Looper, 22 F.4th at 874; Arpan LLC, 29 F.4th at 1270 (11th Cir. 2022).

[39] See Naranda Hotels, 60 F.4th at 174; Acheson Hotels, 50 F.4th at 278–79; Laufer v. Arpan LLC, 29 F.4th at 1296–97 (11th Cir. 2022); see also Laufer v. Arpan LLC, No. 20-14846, 2023 WL 5209551, at *1 (11th Cir. Aug. 15, 2023). The opinion in Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) is moot, making the current split 3-2.

The Circuit Split Regarding the ATF’s Bump Stock Rule

*Sean Costigan

I. Introduction

A bump stock is a rifle attachment that drastically increases the rifle’s rate of fire.[1] While the federal regulations regarding bump stocks have changed,[2] the courts disagree as to whether the change is valid.[3] This lack of consensus demands judicial resolution to prevent confusion where criminal liability, including felony convictions, is at stake.

II. What are Bump Stocks?

Bump stocks are designed to increase a rifle’s rate of fire beyond what would be manually possible.[4] A bump stock replaces a rifle’s conventional stock, the part that rests against the user’s shoulder.[5] The bump stock allows the rifle to slide forward and backward when fired  and harnesses the energy of the rifle’s recoil along the length of the rifle causing the weapon to rapidly shift back and forth.[6] This back-and-forth motion causes the rifle to bump the user’s trigger finger, allowing the user to reactivate the trigger even though the user only pulls the trigger one time.[7] Where without a bump stock a user would need to pull a trigger each time they wanted to discharge a round, bump stocks allow a user to fire multiple rounds (if not the entire magazine) automatically with a single, long trigger pull.[8]

III. The ATF’s Bump Stock Regulations

The law today makes possession of a machinegun a criminal offense (notwithstanding certain exceptions).[9] The relevant statute defines “machinegun” 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 include . . . 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.[10]

Initially, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) stated that non-mechanical bump stocks were not considered machineguns or machinegun parts[11] due to these bump stocks relying on the recoil from the rifle to function and requiring the user to apply constant forward pressure on the rifle’s barrel.[12] The ATF changed its stance in 2018[13] after a mass shooting at a music festival in Las Vegas, Nevada.[14] During this incident, the shooter killed dozens of people and injured hundreds more while using multiple rifles equipped with bump stocks.[15] In the aftermath,[16] the ATF issued a Final Rule amending its regulation to include bump stocks in its interpretation of “machinegun” because “such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.”[17] Owners of bump stocks had ninety days after the Final Rule was published to either destroy these stocks or surrender them to the ATF to avoid criminal liability.[18]

IV. The Circuit Split

In response to the ATF’s ban on bump stocks, multiple lawsuits arose challenging the new regulation.[19] Multiple cases reached separate federal courts of appeals, with two ruling in favor of the regulation and two ruling against it.[20]

In Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, the Court of Appeals for the D.C. Circuit held that the ATF’s construction of the term machinegun to include bump stocks was the best interpretation of the statute.[21]  The court focused heavily on two defining terms: “single function of the trigger” and “automatically.”[22] The court held that “single function of the trigger” simply meant pulling the trigger once[23] and “automatically” meant “the result of a self-acting or self- regulating mechanism that allows the firings of multiple rounds.”[24]

A bump stock allows a user to pull the trigger once, causing the rifle to fire rounds one after another, in a self-acting or self-regulating way so long as the trigger continues to be pulled. Accordingly, the court found that bump stocks fell within the definition of machinegun.[25] The Court of Appeals for the Tenth Circuit also upheld the ATF’s new bump stock rule.[26]

In a more recent case, Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, the Sixth Circuit Court of Appeals reached an opposite conclusion.[27] First, the court found the machinegun definition ambiguous as applied to bump stocks, citing differing judicial rulings on the matter and the ATF’s change of stance regarding bump stocks.[28] Second, it held that the ATF’s construction did not deserve deference from the court due to the potential criminal liability involved.[29] For these reasons, the court believed that the rule of lenity applied.[30] Lenity requires a court to strictly construe a criminal statute.[31] Thus, the court held that “it is not enough to conclude that a criminal statute should cover a particular act. The statute must clearly and unambiguously cover the act.”[32] In other words, the ambiguity and lack of deference to the ATF’s construction required the court to interpret the statute in Hardin’s favor.[33] The Fifth Circuit similarly ruled against the ATF’s new bump stock rule.[34]

V. The Supreme Court’s Need to Rule on the Bump Stock Rule

The contradictory holdings coming from these different circuits open the door to inconsistent rulings on the exact same issue, which means a federal rule could be valid in some parts of the county, but not in others. In light of this circuit split, the Supreme Court granted certiorari under Garland v. Cargill in November 2023, signaling that the Court would definitively rule on the validity of the ATF’s new bump stock rule.[35] The Court’s decision would likely depend on whether it finds the machinegun definition ambiguous as it pertains to bump stocks and the applicability of the Chevron doctrine.[36] Until the Supreme Court announces its decision, these opposing rulings will continue to leave people guessing as to whether or not owning a bump stock is a crime.

*Sean Costigan is a second-year student at the University of Baltimore School of Law and a Staff Editor for Law Review. Prior to law school, Sean served the public at the Social Security Administration for 10 years. He was recently inducted into the Royal Graham Shannonhouse III Honor Society as a Distinguished Scholar. He looks forward to externing at the United States Attorney’s Office in Baltimore, Maryland in the Spring 2024 semester.

Photo Credit: U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.

[1] Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times (Mar. 28, 2019), https://www.nytimes.com/interactive/2017/10/04/us/bump-stock-las-vegas-gun.html.

[2] Bump-Stock-Type Devices, 83 Fed. Reg. 66, 514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447–49).

[3] See Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 45 F.4th 306, 310 (D.C. Cir. 2022); see also Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 65 F.4th 895, 897 (6th Cir. 2023).

[4] Buchanan, supra note 1.

[5] Id.

[6] Id. Additionally, the user needs to apply forward pressure on the rifle’s barrel with their non-trigger hand and rearward pressure with the hand that is holding the pistol grip. Id.

[7] Id.

[8] Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447-49).

[9] 18 U.S.C. § 922(o)(1) However, the statute does not apply to “the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof.” § 922(o)(2).

[10] 26 U.S.C. § 5845(b).

[11] Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 45 F.4th 306, 311 (D.C. Cir. 2022).

[12] Id.

[13] Id.

[14] Elizabeth Chuck, Las Vegas Shooting: 59 Killed and More than 500 Hurt Near Mandalay Bay, NBC News (Oct. 2, 2017, 10:33 PM), https://www.nbcnews.com/storyline/las-vegas-shooting/las-vegas-police-investigating-shooting-mandalay-bay-n806461.

[15] Id.

[16] Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447-49).

[17] Id.

[18] Id. at 66, 549.

[19] Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 45 F.4th 306, 310 (D.C. Cir. 2022); Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 65 F.4th 895, 897 (6th Cir. 2023); Aposhian v. Barr, 958 F.3d 969, 974 (10th Cir. 2020); Cargill v. Garland, 57 F.4th 447, 451 (5th Cir. 2023).

[20] Guedes, 45 F.4th at 312, 323; Hardin, 65 F.4th at 897; Aposhian, 958 F.3d at 974; Cargill, 57 F.4th at 451.

[21] Guedes, 45 F.4th at 317.

[22] Id. at 314.

[23] Id. at 315.

[24] Id. at 316–17.

[25] Id. at 319.

[26] Aposhian v. Barr, 958 F.3d 969, 988 (10th Cir. 2020).

[27] Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 65 F.4th 895, 897 (6th Cir. 2023).

[28] Id. at 898.

[29] Id. at 899–901.

[30] Id. at 901.

[31] Id. (citing FCC v. Am. Board. Co., 347 U.S. 284, 296 (1954)).

[32] Id. (quoting Cargill v. Garland, 57 F.4th 447, 473 (5th Cir. 2023) (Ho, J. concurring)) (emphases in original) (internal quotation marks omitted).

[33] Id. at 902.

[34] Cargill, 57 F.4th at 473.

[35] Garland v. Gargill, No. 22-976, 2023 WL 7266996 (U.S. Nov. 3, 2023).

[36] Under the Chevron doctrine, if Congress has not clearly spoken on the issue in question, courts are to defer to an agency’s construction of a statute that agency administers. Chevron, U.S.A. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843–44 (1984).