UNITED STATES COURT OF APPEALS TENTH CIRCUIT WILLIAM M. YORK dba YORK ARMS COMPANY, Plaintiff-Appellants, vs. SECRETARY OF THE TREASURY, STEPHEN E, HIGGINS, Director of Bureau of Alcohol, Tobacco and Firearms (BATF), and JOHN DOES One through Twenty, agents of BATF, Defendants-Appellees. BRIEF OF APPELLANT Civil No. 84-1370 Appeal from Motion for Summary Judgment of the United States District Court For the District of Utah, Central Division Honorable Aldon J. Anderson, Presiding LONI F. DeLAND HERSCHEL BULLEN McRAE & DeLAND 132 South 600 East Salt Lake City, UT 84102 (801) 364-1333 Attorneys for Appellant Barbara W. Richman Lawrence J. Leigh Assistant U.S, Attorneys P. O. Box 2750 Salt Lake City, UT 84110 (801) 524-5685 Attorneys for Appellees [new page] TABLE OF CONTENTS Page ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2 A. NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . 2 B. PROCEEDINGS IN THE LOWER COURT . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT I. THE ADMINISTRATIVE ACTION IN CLASSIFYING THE FIREARM AS A MACHINEGUN WAS ARBITRARY, CAPRICIOUS AND AN ABUSE OF DISCRETION . . . . . . . . . . . . . . . . . . . . . . . . 10 II. APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS TO DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS WAS VIOLATED . . . . . . . . . . . . . . . . . . . . . . . . . 12 III. APPELLANT IS ENTITLED TO A DE NOVO REVIEW . . . . . . 14 IV. APPELLANT IS ENTITLED TO A TEMPORARY RESTRAINING ORDER AND A PERMANENT INJUNCTION . . . . . . . . . . . . . 17 A. IRREPARABLE INJURY . . . . . . . . . . . . . . . 17 B. EQUITIES VS. PUBLIC INTEREST . . . . . . . . . . . 18 C. MAINTENANCE OF THE STATUS QUO . . . . . . . . . . 18 D. PROBABILITY OF SUCCESS ON THE MERITS . . . . . . . 19 SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CASES CITED Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). . . . . . . 15 Board of Directors, Forber Fed, Credit Union v. NCUA, 477 F.2d 777, 784 (10th Cir 1983) . . . . . . . . . . . . . . . 10 Camp v. Pitts, 441 U.S. 138 (1973) . . . . . . . . . . . . . . . 14 [new page] Page Chamber of Commerce of United States v. OSHA, supra, 636 F.2d at 409 . . . . . . . . . . . . . . . . 15, 17 Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) . . . . . 15 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Goldberg v. Kelley, 397 U.S. 254 (1970) . . . . . . . . . . . 12 Gulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C, Cir. 1983) . . . 10 Haddow Township Board of Education v. New Jersey Department of Education, 476 F.Supp. 681, 691 (D.N.J. 1979) . . . . . 15,17 Independent Meat Packers Assn. v. Butz, 525 F.2d 228 (8th Cir. 1975) . . . . . . . . . . . . . . . . . . . . 10 Morrisey v. Brewer, 408 U.S. 471 (1972) . . . . . . . . . . . . 12 STATUTES AND RULES CITED 5 USC section 553 . . . . . . . . . . . . . . . . . . . . . 14 5 USC section 553(b) . . . . . . . . . . . . . . . . . . . 14 5 USC section 706 . . . . . . . . . . . . . . . . . . . . . 10 26 USC 5801, et seq. . . . . . . . . . . . . . . . . . 4 26 USC section 5834(b) . . . . . . . . . . . . . . . . . . . . 5 26 USC section 5845(b) . . . . . . . . . . . . . . 10, 12, 14,16 26 USC section 5845(d) . . . . . . . . . . . . . . . . . . 2,4 Rule 56, Federal Rules of Civil Procedure . . . . . . . . . . 7 Rule 65(a), Federal Rules of Civil Procedure . . . . . . . . . 1 [new page] Page OTHERS ATF Ruling 83-5 . . . . . . . . . . . . 5, 11, 12, 17, 18, 19 [new page] UNITED STATES COURT OF APPEALS TENTH CIRCUIT WILLIAM M. YORK dba YORK ARMS COMPANY, Plaintiff-Appellant, VS. Civil No. 84-1370 SECRETARY OF THE TREASURY, STEPHEN E. HIGGINS, Director of of Bureau of Alcohol, Tobacco and Firearms (BATF) and JOHN DOES One through Twenty, agents of BATF, Defendants-Appellees. BRIEF OF APPELLANT ISSUES PRESENTED ON APPEAL I. Did the lower Court err in refusing to grant injunctive relief in fever of appellant against appellees, upon plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure? II. Did the lower Court err in granting appellee's motion for Summary Judgment, dismissing appellant's complaint with prejudice? [new page] III. Did the lower Court err in ruling that administrative action in this case, appellee BATF's classifying a certain firearm marketed and sold by appellant, as a machine gun, was not, as a matter of law, arbitrary, capricious, nor an abuse of discretion? IV. Did the lower Court err in ruling that there had been no violation of appellant's constitutional protected rights to due process of law and/or equal protection? V. Did the lower Court err in ruling the appellant is not entitled to a de novo review in District Court of BATF's administrative action? STATEMENT OF THE CASE A. NATURE OF THE CASE This is a case wherein appellant, a duly licensed federal firearms manufacturer, dealer and importer, alleged that appellees, agencies and agents of the United States Government, denied him equal protection and due process of law in the classification of one of appellant's products, a firearm, as a machinegun under 26 USC 5845(d), thus requiring him to discontinue present and future sales and requiring recall of past sales. Appellant maintained in the lower court that these actions were arbitrary, capricious, an abuse of discretion and that the same were taken for an ulterior motive, i.e., to in fact injure appellant in his -2- business through malicious, bad faith and selective enforcement. B. PROCEEDINGS IN THE LOWER COURT Appellant filed his Complaint on or about December 13, 1983, requesting, in addition to De Novo review of BATF's administrative actions, temporary and preliminary injunctive relief against appellees to enjoin them from contacting appellant's customers and threatening them with criminal prosecution if they did not return the firearm sold them by appellant, which firearm is the subject of this action. Appellees Answered and filed their Motion for Summary Judgment on or about January 20, 1984, requesting the Court to determine that no material factual issues prevailed and to dismiss appellant's Complaint with prejudice as a matter of law. By mutual agreement of the parties, appellees refrained from the activities sought to be enjoined until both appellant's Motion for a Preliminary Injunction and appellees' Motion for Summary Judgment could be heard. The matters were heard simultaneously February 13, 1984, the Honorable Aldon J. Anderson, United States District Court Judge, presiding. -3- From the lower Courts order granting appellees' Motion for Summary judgment dismissing appellant's Complaint with prejudice, appellant brings this appeal. STATEMENT OF FACTS This case arises under the National Firearms Act, 26 U.S.C. section 5801, et seq., specifically section 5845(d), the statutory definition of "machinegun". The definition reads: Machinegun. -- The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver or any such weapon, any 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. The appellant is a licensed firearm dealer under the Act doing business in Hurricane, Utah. During a period of time about December 1982, it is uncontroverted that appellant caused to be advertised, offered for sale and did in fact sell as a semi-automatic firearm the facsimile of a certain World War II British submachine gun, known as a STEN. Appellant marketed this firearm, incorporating certain design changes which rendered it "semi-automatic", under the name YAC STEN MKII. YAC in this case, stands for York Arms Corporation, appellant's assumed business name. -4- The product as marketed and sold would not fall within the above quoted definition of a "machinegun." Appellees' Memorandum of Points and Authorities in support of its Motion for Summary Judgment sets forth a basic chronology of events and the supporting documents as they occurred, notwithstanding that appellant disputes many of the conclusions and characterizations contained therein, and appellant relies on the record. (R52-56). In appellees "Uncontroverted Material Facts" statement as it is called, much attention is given to the fact that over a period of a few months in early 1983 BATF requested Mr. York to provide them with a free sample for inspection, but that they were required to acquire the firearm through regular commercial channels because Mr. York failed to respond. No statute or ruling, requires a dealer to supply free samples to BATF, and appellees concede that appellant made numerous efforts to request information relative to standards used by BATF in applying the definition of "machinegun", heretofore set forth. No such standards of review, however, were forthcoming with respect to any design changes which might be needed or recommended to render this particular firearm satisfactory to BATF, i.e., other than a machinegun. On August 3, 1983, BATF classified the YAC STEN MKII as a machinegun under section 5834(b), ATF Ruling 83-5. -5- (Exhibit C, Defendants "Administrative Record," appended to their Memorandum of Points and Authorities in Support of Summary Judgment). Moreover, all previous sales of the YAC STEN were ordered to be recalled, an undertaking which has and will cost appellant approximately $100,000. Appellees claim that appellant was simply treated as any other gun maker or seller would be. However, the record supplied by appellees belies that assertion. In fact R.4 and R.5 (License Investigation Report) support appellant's claim the appellees have a bias and prejudice against him. "York has the reputation of manipulative practices in attempting to skirt around regulations of the Gun Control Act of 1968." R.4, para. 6. "It can reasonably be assumed that the firearms advertised (by Mr. York) will find their way into criminal hands or be otherwise misused." R.4, para. 7 - R.5. These unfounded speculative comments show the defendants' bad faith from the outset. It is also of note that the previous investigation of plaintiff referred to in R.4 were resolved in plaintiff's favor, including criminal charges heard before Judge Jenkins also of the District Court. Paragraph 3 of defendants' "FACTS" asserts that plaintiff was personally requested to provide a sample STEN, citing R.22. R.22 (appellees' Administrative Record) is a -6- self-serving statement unsupported by the record and without sufficient foundation as to admissibility as required by Rule 56, Federal Rules of Civil Procedure, insofar as it refers to any conversation involving Mr. York. On the other and the record is clear that on June 10, 1983, for example, plaintiff requested information as follows: . . . In short I need written or typed or printed all information from your bureau that I as a manufacturer or importer will or would ever need so that I might be informed in such a manner so as not to be in jeopardy of any Federal Law or Regulation, I already have an copy of the 1978 your guide to Firearms Regulations, But I am under the opinion that there is a lot more regulations that your Bureau may have that I am not aware of. (R.6) Indeed, the record reflects plaintiff's continual attempts to achieve some semblance of due process, i.e., notice as to what it was he was expected to comply with. All he received was bureaucratic mumbo jumbo and a determination, without his input, that the STEM was violative of the NFA, (appellees' Record 10). Appellees' factual record continually points out that appellant is felt to be, in effect, a "troublemaker" (References to his writing his Congressman, e.g.) In fact appellant was exercising his First Amendment rights and being singled out for that reason. Unfortunately, his -7- repeated requests for administrative hearings caused him to further be characterized as a thorn in ATF's side. Appellees make several references to Mr. York's refusal to allow inspections. Again, these are self-serving statements all of which are refuted by Mr. York, Paragraph 14 of appellees' "FACTS" claims that appellant's attorney had to intervene to make Mr. York's records available, referring to their R.60. In fact, R.60 makes no reference at all to Mr. York's attorney. None of this information has anything to do with the merits of this lawsuit. Although appellees accurately quoted their R.57 (letter of December 8, 1983 from BATF) that ATF "is ready to assist you on the redesign of the STEN," that was far from the case. The real position of defendants is reported in the copy of the certified transcript entitled "Informal Hearing" appended to appellant's Verified Memorandum in Opposition to Defendants' Motion for Summary of Judgment which reports the discussions of plaintiff and certain ATF agents held November 3, 1983 in Mr. York's business. Examination of the whole of the record reveals that ATF takes the position that it is not in the business of designing guns and the only assistance due Mr. York in redesigning the STEN would be after the fact. At page 50 of that transcript, Charles Lanum, ATF Firearms Enforcement Officer, advised Mr. York and his attorney that "there's -8- nothing you can do to this particular firearm (STEN) to make it (approvable)." Further, at pages 50 and 51, Mr. Lanum stated that while some design features could be modified to make the STEN legal, "Now, I'm not at liberty to divulge those particular features...." In other words, ATF will not say what needs to be done to make it right, but only will indicate if it is right or wrong, on a case by case basis, once the final product has been submitted. This allows ATF to be arbitrary and capricious in their decisions, inasmuch as it has no particular guidelines to be followed in this area. It is appellant's undisputed, uncontroverted position that other guns from other manufacturers have no discernible design characteristics different from the STEN distributed by Mr. York, yet their designs have been approved and are presently being marketed, e.g., the U31, D MOR, COLT AR15, AR7 and KG99. The only distinction is that these guns are manufactured and distributed by large manufacturers. The District Court declined to receive such evidence. The barren conclusions of defendants, as quoted from the letter of Stephen Higgins to Honorable James V. Hansen, that these other firearms, the U31, COLT, etc. ". . . were not originally designed to fire automatically, nor can that they be converted to fire automatically without -9- substantial alternation of parts...," is a bald faced conclusion which is not, and appellant believes, cannot be supported by actual facts. (appellees Record p.34). The lower Court also declined to hear this evidence. Furthermore it is not true that these other firearms mentioned "are designed in such a fashion that such attempts (to alter the gun from semi-automatic to automatic by defeating the disconnector mechanism) will result in jamming of the weapon. (R.34). Indeed it is appellant's position that proof can be presented that in no material way are these guns and others similar to them any different from his STEN. I. THE ADMINISTRATIVE ACTION IN CLASSIFYING THE FIREARM AS A MACHINEGUN WAS ARBITRARY, CAPRICIOUS AND AN ABUSE OF DISCRETION Appellees conceded in the lower court that where an allegation is made, as in appellant's Complaint, that an administrative action is violative of 5 USC section 706, that the court may make a full inquiry into the facts of the case in order to make its own determination, findings and conclusions regarding the Agency's judgment. Independent Meat Packers Assn. v Butz, 526 F.2d 228 (8th Cir. 1975) It is appellant's position that, in light of the treatment given to other manufacturers of like weapons, that the ATF interpretation regarding the STEN is "plainly -10- erroneous," and therefore should be held unlawful and set aside pursuant to 5 USC section 706. Board of Directors, Forbes Fed. Credit Union v. NCUA, 477 F.2d 777, 784 (10th Cir. 1983); Gulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C. Cir. 1970) The question then becomes doubly important as to the issue of whether or not the decision was based upon relevant factors and taking those factors into account there is a rational basis for the action. If there were not plain error of judgment against appellant in this case, it remains unexplained how other firearms, "readily convertible" to automatic, which plaintiff has previously mentioned, have been classified outside of the scope of 26 USC section 5845(b). ATF Ruling 83-5, holding the YAC STEN MKII to be a machinegun, indicates on its face that "a component part of the weapon is a trip lever (disconnector) which has been modified to prevent more than one shot being fired with a single function of the trigger." (R.24). It begs the question then to state that a "simple modification to it, such as bending, breaking or cutting allows the weapon to operate automatically." This is the case with all of the other firearms mentioned previously and with many others. It is appellant's expert opinion that these features are found to one degree or another "in the typical sporting rifle." (Plaintiff's -11- Verified Memorandum in Opposition to Defendants' Motion for Summary Judgment) It is appellant's opinion as an expert in this field that the STEN MKII is not designed to shoot automatically. It is a reproduction of a firearm which was designed that way, but the modifications made prior to appellant's sale of the gun render it legal under 26 USC section 5845 (b). Accordingly, the finding of ATF is plainly erroneous and "a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). II. APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS TO DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS WAS VIOLATED Appellees conceded in the lower court that appellant was allowed absolutely no input regarding the decision to construe the STEN a machinegun. "The meeting at your premises, November 31, 1983, was not a hearing." (appellees Record 58) Appellees also would surely not disagree that some minimal due process is entitled to be afforded appellant. Morrisey v. Brewer, 408 U.S. 471 (1972); Goldberg v. Kelley, 397 U,S. 254 (1970). From a reading of ATF Ruling 83-5 concerning the STEN (appellees Record 24), no hard evidence is elicited to buttress the agency's conclusion that the gun is designed to be a machinegun, notwithstanding that there is evidence of a -12- design change which prevents, as in other like firearms, automatic functioning with a single function of the trigger. Thus the record is not supported by substantial evidence to demonstrate that due process was afforded. Indeed, Mr. York, several times, has requested a hearing on this issue, but none has been allowed. Appellees make the statement, at page 17 of their memorandum, that "ATF has advised appellant that it is willing to advise him on design changes which would remove the STEN from NFA controls," A reading of the portions of the record cited by appellees, pages 53 and 57, letters to Mr. York, reveals nothing of the sort, except to reiterate a willingness to "pass" upon future designs. The fact is that ATF has all along been more concerned with the fact that plaintiff did not submit the STEN to them, which he is not required to do, prior to marketing. This factor, more than any appropriate due process consideration, appellant believes, led to ATF's ruling, which is unquestionably a denial of due process under the Fifth and Fourteenth Amendments. As previously indicated other firearms of like type and kind have been and are presently being allowed to commerce in the national economy. The refusal to allow the STEN equal footing is a denial of equal protection of the laws under the Fourteenth Amendment. -13- III. APPELLANT IS ENTITLED TO A DE NOVO REVIEW De novo testimony must be taken, inasmuch as there is insufficient evidence in the record to support the findings of the agency. The Bureau's action was taken pursuant to the APA's rulemaking provisions, 5 USC section 553. Accordingly de novo review is highly appropriate. The requirements of Camp v. Pitts, 441 U.S. 138 (1973) have not been met. The administrative record is deficient and therefore not susceptible to effective judicial review without trial de novo. The appellees have asserted previously that the definition of "machinegun" includes those weapons which can be converted to shoot as a machinegun, as being "designed" to be "machine guns." It accomplishes this redefinition without following the notice and comment procedural mandate of the Administrative Procedure Act, 5 USC section 553(b). Appellees, BATE, must of necessity argue that they are exempt from the notice and comment provisions. Such is not the case however, Congress new fully how to use the word "conversion" but declined to use the word in conjunction with 26 USC section 5845(b), and the term machine guns. Thus BATF's redefinition is not brought about by a mere "interpretive" rule concerning the term "design." -14- At the heart of the issue is the question of whether the Bureau's redefinition of the term "machinegun" is a legislative or an interpretive ruling. Interpretive rules 'are statements as to what the administrative officer thinks the statute or regulation means.' . . . Such rules only provide a 'clarification of statutory language,' . . . the interpreting agency only 'reminds affected parties of existing duties.' Chamber of Commerce of United States v. OSHA, supra, 636 F.2d at 469 (citations omitted). On the other hand, Legislative, or substantive, regulations are issued by an agency pursuant to statutory authority and ... implement the statute.... Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) That is legislative rules represent creation of new law based on a delegation of authority to the agency by Congress. Haddon Township Board of Education v. New Jersey Department of Education, 476 F.Supp. 681, 691 (D.N.J. 1979). Thus, a legislative rule is one "affecting individual rights and obligations," Chrysler Corp, v. Brown, 441 U.S. 281, 302 (1979), by way of implementing and supplementing the statute at issue. Chamber of Commerce of United States v. OSHA, supra, 646 F.2d at 469. From the facts in this case, it is obvious that the Bureau's acts do not merely remind the affected parties of "existing duties," but rather creates "new law," As -15- such, the Bureau's acts are legislative, and not merely interpretive. The "new law" that has been created by the Bureau's actions is the redefinition of the term "machinegun," a term that was defined by Congress in the National Firearms Act. The Bureau's rulings have expanded the definition of machine gun to include those weapons which can be converted "to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 USC section 5845(b), supra. Appellees' argument that this ruling is a mere interpretation of the term "design" can only be viewed as an attempt to avoid the requirements of the Administrative Procedure Act by disguising an otherwise legislative ruling with the term "interpretation." Congress knew full well how to use the term "conversion." It used that term in several instances in the very act at issue, defining the term "machinegun" to include "any combination of parts designed and intended for use in converting "a weapon into a machinegun." 26 USC section 5845(b), supra. Thus, while Congress did not include convertibility in its definition of weapons which are machineguns, Congress manifested that it knew full well how to use that term. Therefore, it must be concluded that Congress' failure to include convertibility in its definition of weapons which are defined as "machineguns" was a deliberate act by Congress not to include that class of -16- weapons. Appellees' attempt to now so include those weapons which may be convertible to machine guns must therefore be considered a "creation of new law," Haddon Township Board of Education v. New Jersey Department of Education, supra, 476 F.Supp. at 691, and not merely a "clarification of statutory language." Chamber of Commerce of United States v. OSHA, supra, 636 F.2d at 469. As such, the Bureau's redefinition of the term "machinegun" must be held to be a legislative ruling by the Bureau, and therefore void as failing to comply with the notice and comment provisions of the Administrative Procedure Act. IV. APPELLANT IS ENTITLED TO A TEMPORARY RESTRAINING ORDER AND A PERMANENT INJUNCTION A. IRREPARABLE INJURY The net result of enforcement of ATF Ruling 83-5 would be the immediate return to appellant of over $100,000 worth of firearms. Appellant is now involved in bankruptcy proceedings designed to develop a plan to pay off creditors. A $100,000-plus penalty at this time would clearly and totally bankrupt appellant and his business. The record clearly reflects appellees' bad faith intent to single him out for disparate treatment. Appellees' notification to purchasers to return the aforesaid weapons by November 19, 1983 or face criminal -17- action clearly demonstrates an immediate, imminent need for temporary relief until this matter can be heard on its merits. B. EQUITIES VS. PUBLIC INTEREST There is no denying that ATF holds a public interest in keeping automatic weapons out of the hands of the criminal element. Appellees' speculated that appellant's weapons "will" end up there with no basis in fact for such a statement. Appellant's posture, one man against an oppressive and discriminatory government ruling, cries for equitable relief in his behalf. The equitable position which this court should favor is to consider the tens of thousands of weapons inherently no less difficult to convert (Uzie, Colt, etc.) versus the few hundred sold by appellant, At the very least, this court, in applying equitable, fair and equal application of the law, should remand this matter directing the Trial Court to take evidence relative to the issue of injunction of retrospective enforcement of ATF Ruling 83-5 against plaintiff. C. MAINTENANCE OF THE STATUS QUO Appellant relies upon his equal protection and due process arguments previously advanced. -18- D. PROBABILITY OF SUCCESS ON THE MERITS Due to the nature of appellant's claim, it is clear that a great deal of discovery will be required. It was premature for the lower court to determine that appellant's likelihood of prevailing on the merits was not good. When issues as significant as due process and equal protection are alleged, this court should apply every equitable principle available to stand between the government and an aggrieved citizen until a trial on the merits can be had. SUMMARY The trial court was hasty to conclude that the YAC STEN MKII is a machinegun. The questions presented by this appeal all focus in on one central question: by what objective criteria, by what discernable standard of judgment, did the Bureau come to the conclusion that this gun, as opposed to all others, is a machinegun? How is a dealer to know if he is receiving the modicum of due process to which he is entitled? Nothing in the record before the Court is dispositive of these questions. The fact that Bureau Ruling 83-5 seems to look like it was promulgated properly begs the question, which the record does not answer. What due process standard was applied to rule out others yet include this one? It is not a question of selective enforcement as the trial court -19- believed it to be, it is a question of due process. If defendants are wholly unable to provide any guidelines, criteria or standards by which to discern the validity of their determination in respect to the subject firearm, or any other firearm, is it not reasonable for appellant to conclude that unusually harsh treatment for him may be the result of bad faith rather than due process. Appellant respectfully requests this Court to remand for plenary hearing as to injunctive relief and all issues presented by his Complaint. RESPECTFULLY SUBMITTED this 6 day of June, 1984. LONI F. DeLAND McRAE & DeLAND Attorneys for Plaintiff HERSCHEL BULLEN McRAE & DeLAND Attorneys for Plaintiff MAILED OR HAD DELIVERED two copies of the foregoing Brief of Appellant to Barbara W. Richman and Lawrence J. Leigh, Assistant U. S. Attorneys, P. O. Box -20- 2750, Salt Lake City, Utah 84110, this 6 day of June, 1984. -21-