And You Thought The ATF Interpretation On Pistol Braces Was Safe, Did You?
BY Herschel Smith
6 years ago
Although I cannot disclose all of the occasions where ATF has recently reversed its prior determinations or devised a new interpretation of the law or regulation, I can disclose a recent prosecution, of a veteran, where ATF devised a new interpretation out of whole cloth and was successful in convincing the U.S. Attorney’s Office for the Northern District of Ohio to prosecute. The case is U.S. v. Wright, 3:18-CR-162 and it should have the entire Firearms Community alarmed.
Although many of the documents have been sealed by the Court (that should tell you a good bit already), the superseding indictment is publicly available and suggests that Mr. Wright had an unregistered short-barrelled rifle (SBR) that was not registered in the National Firearms Registration and Transfer Record (NFRTR). Regardless of whether you believe the National Firearms Act is constitutional or appropriate, at the time of writing this article, the courts have not yet found it to be unconstitutional and if merely inappropriate, one’s proper recourse is to seek a statutory deletion or revision. Thus, the possession of an unregistered SBR is unlawful. So, why is this case concerning? Unfortunately most of the informative documents have been sealed…that is, except for the Government’s Motion in Limine. (For those who don’t know what a motion in limine is, it is a motion filed by a party which asks the court for an order or ruling limiting or preventing certain evidence from being presented during a trial).
When you review the Motion in Limine, you quickly learn that the Government is seeking to preclude ATF FATD (Firearms and Ammunition Technology Division) determinations from being used in any way during trial. These determinations appear to have been part of a discovery dispute, which is also sealed and is evidenced by the Government’s statement that “[t]he Government produced the letters under the protection of a protective order that the Court authorized on August 1, 2018.”. For the reasons that follow, I find it extremely comical that the Government actually contended that “ATF FATD letters at trial creates a grave risk of confusing the issues and misleading the jury,” but I digress…for now.
We quickly learn from the Government that:
The critical issue in this case will not be possession, registration (or lack thereof), or barrel length. Ultimately, the primary issue in dispute at trial will be whether or not Kelland Wright’s firearm meets the definition of a “rifle,” that is a firearm designed to be fired from the shoulder, see 26 U.S.C. § 5845(a). Part of this issue will center on the implications modifications that Kelland Wright made or had made to the firearm, including the addition of an extension piece to the rear of the firearm.
Hmmm, so now we know that the issue is whether the piece added to his Ar-15 pistol constituted a “stock” or not. The Government further contends:
Wright’s expert, Richard Vasquez, is expected to testify that the extension piece functions as a cheek rest. The Government’s expert, Firearms Enforcement Officer Eve E. Eisenbise, is expected to testify that the extension piece makes the firearm designed to be fired from the shoulder. Officer Eisenbise is an employee of the ATF FATD. Richard Vasquez formerly was employed by the FATD.
…
The relevant issues at trial relate to the specifics of Wright’s firearm, an AR pistol platform that was modified with an angled foregrip and collapsible stock.
Now, everything starts to come into light. The Government is contending that an extension piece that is designed as a cheek rest is actually a stock or if not, Mr. Wright had a vertical foregrip on his pistol. (We call this roping a heifer, where the Government attempts to contend that no matter how you classify the situation, you have violated some law). Now, some of you are probably saying, hold on, ATF previously issued determinations – such as in relation to the Thorsden determination request letter and ATF’s response – that cheek rests and other devices, which were not designed to be shouldered, are not stocks. (For more discussion on cheek weld determinations, see our blog article Ringing In the New Year ATF Style). And they have issued numerous determinations – such as the one regarding the Magpul Angled Fore-Grip – that angled foregrips are not vertical pistol grips. Yep, but that didn’t stop the ATF and the U.S Attorney’s Office from prosecuting Mr. Wright and seeking to preclude the jurors from seeing or hearing of the determination letters, even though, the Government never once contended that Mr. Wright actually shouldered the cheek weld extension or utilized the angled foregrip.
So the DoJ is revising by practice their determination that the stabilizer braces aren’t an NFA item, or more correctly, the weapons to which they are attached are an SBR. I’m not certain whether he had an angled foregrip or a vertical one, and it should make no difference.
Fortunately, this was an instance of jury nullification and Mr. Wright was found innocent. But the cloak has been pulled back and you see the future. It looks stupid.
On October 28, 2018 at 10:06 pm, Longbow said:
Let us think about this…
Lets say a man takes a job. The job requires an Oath of Office. After taking said Oath, he begins work. The work he begins to do, and which he will do every day from then forward, is an utter violation of his Oath of Office. The man knows this very well, but does not care. He does the work anyway “willfully and deliberately”.
Might we consider him a “Good Man” or a “Bad Man”?
A more precise question might be, “Is this what a Good Man does?”
For you Rhetoriticians out there,
Lets say a man takes a job as a prosecutor. He knows the purpose of Government is supposed to be the preservation of Life, Liberty and Property, and to ensure the fullest exercise of those rights by all free men. He is supposed to be proecuting bad men who hurt other men, damage property and fail to fulfill contracts. One right which is guaranteed in writing to all free men by the Society’s founding document is legislated into meaninglessness. The prosecutor knows this. He knows it is upside down from the way it it is supposed to be, but he prosecutes cases made against free men for the exercise of that right. He does this knowing he is imprisoning good men, ruining lives, and devastating families, but he doesn’t care. To him, the exercise of power over other men is its own reward.
Is this man, the prosecutor, a “Good man”, or a “Bad Man”?
Or, more precisely, “Is this what a Good Man does?”
http://pluckingtheyew.blogspot.com/2011/12/open-letter-read-at-your-own-risk.html
http://pluckingtheyew.blogspot.com/2013/03/when-malice-is-obvious-call-it-malice.html
On October 29, 2018 at 2:47 am, Nosmo said:
Well.
That lasted longer than I thought it would. It always seemed predictable that if the 2A, which largely prevented government control over what happens at one end of the gizmo was moderately untouchable, the other end would start garnering more attention.
And so it has.
Wonder where the SB Tactical decision will come to rest on this spectrum. And how many years a rubber crutch tip on a buffer tube is worth.
On October 29, 2018 at 6:51 am, Mark Matis said:
One is simply not permitted to ask those questions, Longbow of either “Law Enforcement” or the “Legal” system.
On October 29, 2018 at 8:05 am, ragman said:
My first rule is to never, ever trust someone in “authority”. The future looks dangerous as well as stupid. If the communists win in the election next week, bad things are coming down the pike that we can’t even imagine. I’m talking about communist governors in FL and GA as well as the House. It’s later than we think and we must use what little time is left wisely.
On October 29, 2018 at 2:54 pm, Gryphon said:
Yeah, it was always obvious to Me that the ‘pistol brace approval’ by ATF was a Ruse to eventually be used to Entrap certain Gun Owners by ‘reversion’ to the original definition of an SBR.
The government’s Problem here is like the ‘bump stock ban’, it is creating such a Large Number of potential ‘citizen criminals’ by bureaucratic Fiat that
A) they can’t Find and Arrest them all like with NFA ‘registered’ Items, and
B) the Large Numbers of ‘criminals by Fiat’ they create will contain Unknown Numbers of People who now are going to Consider overt Resistance, and
C) they cannot know Who those Individuals Are, until it’s Too Late…
On October 29, 2018 at 5:25 pm, scott s. said:
I suppose unless you can cite a Revenue (or ATF) Ruling you’re on your own, unless you get a private determination letter (sort of like in tax disputes).
On October 29, 2018 at 10:34 pm, Georgiaboy61 said:
@ Gryphon
Re: “Yeah, it was always obvious to Me that the ‘pistol brace approval’ by ATF was a Ruse to eventually be used to Entrap certain Gun Owners by ‘reversion’ to the original definition of an SBR.”
Ayn Rand’s words come to mind…
“The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”
Any federal agency like the ATF needs a constant stream of reasons to exist, reasons to continue to lobby for additional funding, reasons they are still “necessary” and should not be disbanded by executive order. Reasons to ask for a budget increase for the next fiscal year.
And if you an agency whose work interfaces with law-enforcement or the like, there is nothing better, bureaucratically-speaking, than a “serious new problem” which can be used to justify more funding, more regulations and more clout for your agency. It’s all a giant self-licking ice-cream cone! If you work for them, what’s not to like?
Create problems with the left hand, “solve them” with the right – it’s pretty much their MO.
Whether it is bump stocks or AR-style pistols, the ATF can move the goal posts anytime they like, secure in the knowledge that the higher-ups won’t call them onto the carpet. Create an entire class of “criminals” where none existed before.
The ATF are far from the only federal agency engaged in these underhanded tactics, sad to say.
On October 30, 2018 at 11:39 am, Gryphon said:
GB61 –
Quite a while ago, someone wrote a Book titled “Three Felonies a Day” (sorry, forgot the Author’s Name) outlining how the “Laws” of the feral government have become so Numerous, Convoluted and OCCULTED, that Every Citizen, Every Day, is ‘violating’ on average, three ‘Laws’ that could get them Jailed Forever in the federal Gulag, for doing seemingly Innocuous things that have no apparent “Criminality” (or Harm to another Person) whatsoever.
These “Malum Prohibitum” or Fiat “Laws” are Contrary to every concept of “Justice”, but because their Existence and Effect on Liberty has been so carefully Hidden (yes, Occulted) that the Majority of People don’t have a Clue.
The only Way this Changes is when, (not if) the feral government Collapses under the Weight of its Own Corruption; I believe we are beginning to See this, as for Example, the ‘reveal’ of the “Just Us” system where the minions of the Swamp commit Egregious, Public Crimes (think clinton and the Home Computer used for Official, ‘Classified’ Business) and their Crimes are Completely Ignored, and ‘Covered for’ by the very same ‘officers’ who should have them Arrested. And Yes, Donald Trump, as President, is Derelict in His Duty as the Chief Executive, in Not having that individual Prosecuted.
On October 31, 2018 at 4:03 pm, DAN III said:
Until Patriots start terminating federal scum “with prejudice”, Freedom will continue to be eroded.
On November 2, 2018 at 5:31 pm, mattinnc said:
Jury found him not guilty:
https://www.thetruthaboutguns.com/2018/11/daniel-zimmerman/atf-suffers-rare-court-loss-in-ohio-short-barrel-rifle-prosecution/
On November 7, 2018 at 12:53 pm, DDS said:
@Georgiaboy61
Recall that Waco started out as a stunt by ATF to enhance their case for an increased budget.