Feds Drop Prosecution of Man Who Sold AR Kits to 19 Felons

[Bartholomew Roberts]

https://www.news-daily.com/news/worl...b86a4743f.html

The feds dropped the case because they were concerned they’d loseon a weird point of law. As it turns out, many firearms built since the 1950s have both an upper and lower receiver. However, the legal description of “receiver” basically describes a 1903-type receiver that houses both the trigger, the hammer/striker, bolt, and barrel.

The ATF was concerned the judge wasn’t going to accept their longstanding interpretation regarding which part of an AR15 was the receiver. Rather than have a ruling like Thompson Center occur again, they dropped the case against a California man who had been selling 80% AR kits and then letting people “manufacture” them by pressing the button on his automated mill. He would then assemble the remaining parts for them.

The article reports at least 24 prohibited persons acquired ARs this way, including one mass shooter, 19 convicted felons, 5 domestic abusers, and a mentally incapacitated individual.

I thought this was interesting both for the legal implications, given the number of firearms produced in the last 70 years that split firearm parts between an upper and lower receiver. I also think it shows that the general public hasn’t even started to grasp the ease with which older designs like the AR15 or AK47 can be manufactured locally.

[Spats McGee]

I read both the article and the Order, and have attached the latter. Being the law nerd that I am, I found it fascinating. It's an attack on the BATFE's "classification system," which I've found problematic for a long time.

[SPEMack618]

Forgive me; but if the receiver is classified as the firearm; what good does it do the BATFE to change that ruling?

As in why are they worried about the case going forward?

[Spats McGee]

Off the top of my head, I see two answers to your questions: (1) The crux of the problem is that a "lower receiver," which is what the ATF has always said constitutes a "firearms receiver" all these years, does not meet the statutory definition of a "firearm receiver." That means that even though the ATF has "classified" lowers as "receivers," this court is saying that it did not have the power to do so because it had to ignore statutory definitions to do so.

(2) Part of the decision rests on the facts: (a) that the ATF has no clear system in place for classification and (b) it didn't follow the procedures set forth in the Administrative Procedures Act (APA) in classifying lowers as "firearms." The BATFE is afraid that this case could set a precedent for challenging every determination letter it has ever sent out. That could really upset BATFE's apple cart.

[SPEMack618]

Interesting. I came across this on the internet the other day and was wondering how it would be interpreted in regards to BATFE "classifications.

[Aguila Blanca]

I have seen numerous discussions about the AR-15 in the past, in which it has been suggested that it would have made more sense for the BATFE to classify the upper as "the receiver" rather than the lower. This ruling seems to somewhat support that view.

[cslinger]

What sucks is this is the crux of “bad laws” if you will and where intent really should play into it in a perfect world.

As a law abiding gun owner is see no problem with with the accessibility of most any arms to any other law abiding citizen. (Ok I am not sure I want the average idjit juggling hand grenades but I digress).

That said IF this person was INTENTIONALLY AND KNOWINGLY providing arms to criminals / violent individuals I WANT HIM PUT AWAY!! There is a difference between joe good guy making a few losers for his good guy friends for the fun of it vs this as far as intent. I NEVER want to see Joe Good guy get railroaded but I want to see the bad guys get put away.

This is why I think there needs to be an overhaul of these types of laws that focuses far less on the object and far more on the use/intent/etc. (I know a very simplistic thought).

Point is there is a difference between some good old boy making himself a suppressor or SBR for giggles vs the same guy doing so and getting caught headed into the local 7/11 with a ski mask on.

[Spats McGee]

Originally Posted by cslinger

....That said IF this person was INTENTIONALLY AND KNOWINGLY providing arms to criminals / violent individuals I WANT HIM PUT AWAY!! There is a difference between joe good guy making a few losers for his good guy friends for the fun of it vs this as far as intent. I NEVER want to see Joe Good guy get railroaded but I want to see the bad guys get put away. ....

I don't disagree with you. People who knowingly and intentionally arm bad guys should be punished in accordance with the law. That said, the press release for charging Joseph Roh is here and it's dated October 2, 2014. The fact that the feds have done their investigation, charged him with manufacturing and selling without a license, but here we are 5 years down the road, and the feds still haven't charged him with transfer to someone he knew or should have known was prohibited from possessing a firearm .... That suggests to me that the feds don't have enough evidence that he did so to charge him.

[Aguila Blanca]

Originally Posted by Spats McGee

I don't disagree with you. People who knowingly and intentionally arm bad guys should be punished in accordance with the law. That said, the press release for charging Joseph Roh is here and it's dated October 2, 2014. The fact that the feds have done their investigation, charged him with manufacturing and selling without a license, but here we are 5 years down the road, and the feds still haven't charged him with transfer to someone he knew or should have known was prohibited from possessing a firearm .... That suggests to me that the feds don't have enough evidence that he did so to charge him.

They can't charge him with that. He sold them unfinished "receivers." The owners of those unfinished parts then showed up at his shop/warehouse, he set the unfinished parts up in a CNC machine, and the owners of the parts then pushed the button to initiate the machining process.

In essence, regardless of the definition of a receiver, it appears that Roh can't be charged with unlawful transfers because at no time did he actually sell (transfer) either a completed receiver or a completed firearm.

And they can't get him on gunsmithing without entering the guns into a bound book, because the customers didn't leave their firearms with him overnight.

In short, the government painted itself pretty deeply into a corner.

From the order (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)):

It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. First, because we assume that man is
free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws
may trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented, laws
must provide explicit standards for those who apply them.

From the order:

The plain conclusion is that the finished receiver is not a firearm.

Here, the converse is true: ATF is reading out of the regulation express requirements for a receiver. That is not reasonable.

The Court finds that Roh’s activities with respect to the production of
finished receivers were not within the scope of the statute or the ATF regulatory definition. Therefore, Roh did not violate the law by manufacturing receivers. The Court further finds that with respect to manufacturing receivers, the statue [sic] and regulation are unconstitutionally vague as applied here. No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation.

So we're back to the antiquated notion that people should be able to read and understand a law if the .gov wants to be able to prosecute failure to comply with said law. It's often held to be axiomatic that ignorance of the law is not an excuse for violating it. If that's to be true, then IMHO it stands to reason that when I can find and read a law, I should able to understand what the words say, and I should be allowed to proceed on the basis that the words mean what they say. This is just another case of the government saying, "Oh, that's what we said, but this is what we meant."

[Spats McGee]

Right. My point is simply that if the feds thought he was doing something else illegal (on top of what they'd already charged him with), they had plenty of time to collect evidence and file a charge.

[Aguila Blanca]

Originally Posted by Spats McGee

My point is simply that if the feds thought he was doing something else illegal (on top of what they'd already charged him with), they had plenty of time to collect evidence and file a charge.

Agreed.

[Spats McGee]

I think the APA-noncompliance argument (not this particular case, but the line of argument) has the potential to open up all of BATFE's classifications where they did not publish a Notice of Rulemaking, or get public comment to challenge.

[44 AMP]

what is a receiver? In firearms terms, it is the part that "receives" the other parts needed to assemble a firing weapon. Designs differ, but generally, without a receiver you cannot assemble a functional firearm, and the receiver alone is not a functional firearm.

I took a quick look at 18 US code 921 definitions section and could not find a definition there of what a receiver is. If someone has the definition as written in LAW (not interpretive regulations) could you please post it here?

The law states that the receiver (the serial# part) is, under the law, the gun, for all legal purposes (manufacture, sale, possession, etc). I could not find anything in the law that specifies WHICH part is to be identified as the frame or receiver, only that there is one.

IF the "receiver" isn't fully finished (capable of accepting all the need parts to create a functional firearm, then its not a receiver, its just a lump of metal. It doesn't require a serial number, its not legally a firearm, and can be sold to anyone, INCLUDING convicted felons without breaking ANY law.

If I'm understanding the posts correctly, it seems that the court recognized that the accused did not violate the letter of the law, and so dismissed the charges. Then went on and gave their opinion that the ATF's classification of what was, and wasn't a receiver was too vague.

Seems that the accused knew the intent of the law, and was careful not to violate the letter of the law. Now we get into what is ethical, versus what is legal or illegal.

IF, as reported, it was the owner of the piece of metal that pushed the button that turned it into a firearm receiver, then the accused did not "make" a receiver, only "provided a service" through the use of his machinery.

I think, in this case the court was correct to dismiss the charges, because the ATF charged him with the "wrong" crime.

If they had charged him with (not sure the right legal terms) either "conspiracy" or "aiding and abetting" a prohibited person's possession of a firearm, I think that might have had a different outcome, other than outright dismissal.

WHY the ATF didn't do that is anyone's guess, the most likely reason being they didn't have what they felt was a strong enough case to prove that, in court.

the "loophole defense" I see in the case of charging him with assisting a prohibited person involves no legal requirement to "know or should have known" the person buying the lump of unfinished metal is, or isn't a person prohibited from possessing a firearm. The accused sold a lump of metal. No firearms crime there.

That lump of metal was turned into a firearm (receiver) using his machinery, but "he" didn't do it. IS there a legal requirement to know the legal status of the person pushing the button on his automated machine? I don't know, but I doubt it.

Now, a prohibited person, knowing they are a prohibited person pushing that button to manufacture a firearm (receiver) it, being their property, and they are in possession of it, THEY would be committing a crime. Right??

Assembling the other parts on to that receiver to make a functional weapon? That could also be considered just "providing a service". I don't see where that would be a crime, UNLESS he did it knowing he was doing it for a prohibited person.

Thoughts?

[zukiphile]

Originally Posted by 44 AMP

Assembling the other parts on to that receiver to make a functional weapon? That could also be considered just "providing a service". I don't see where that would be a crime, UNLESS he did it knowing he was doing it for a prohibited person.

Thoughts?

The decision grants the motion for acquittal on the receiver charge. That's the interesting part about the ATF using an unconstitutionally vague and opaque process for creating quasi-rules, the part most of this thread is about.

It also denied the balance of the motion. I think it seems reasonable to conclude that assembling the all constituent parts of a firearm is the manufacture of that firearm. If you do that commercially, the federal government wants to license the activity. The defendant here admits that he sold completed firearms, so his motion on that charge was denied.

[Aguila Blanca]

Originally Posted by 44 AMP

what is a receiver? In firearms terms, it is the part that "receives" the other parts needed to assemble a firing weapon. Designs differ, but generally, without a receiver you cannot assemble a functional firearm, and the receiver alone is not a functional firearm.

I took a quick look at 18 US code 921 definitions section and could not find a definition there of what a receiver is. If someone has the definition as written in LAW (not interpretive regulations) could you please post it here?

The court's proposed order stated the source of its definition of "receiver": 27 CFR 478.11.

https://www.law.cornell.edu/cfr/text/27/478.11

§ 478.11 Meaning of terms.

When used in this part and in forms prescribed under this part, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, terms shall have the meanings ascribed in this section. Words in the plural form shall include the singular, and vice versa, and words importing the masculine gender shall include the feminine. The terms “includes” and “including” do not exclude other things not enumerated which are in the same general class or are otherwise within the scope thereof.

...

Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.

[44 AMP]

Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.

Thank you. This definition in law (not regulation) makes things easier to understand.

Using that definition, it becomes easy to see why a court could question the ATF's choice that the lower receiver is to be the serial # part (assuming it was they who did make the choice), since the lower does contain the hammer, but does not contain the bolt, and "firing mechanism" or barrel attachment.

Now, this begs the question, DID the ATF make the decision or were they presented with the AR with the lower already serial#'d and simply approved it? It's likely that those in the ATF at the time probably figured it would make no difference, upper or lower, as long as one of the was the ser# part for legal purposes. Now, it seems that it might make a difference, 60 some years down the road...

I am also reminded of the Ruger Mk I pistol (and, I think the rest of the Mark series), which is almost the opposite. MOST handguns have the frame as the ser# part, (which is often but not always integral with the grip "frame") but that Ruger does not, it's "receiver" is not the frame, but is attached to it.

[Geezerbiker]

When the programmable milling machine for finishing 80% AR lowers came out. Supposedly one was not able to loan or rent one out without running afoul of the BATF. I suppose that just went out the window...

Tony

[44 AMP]

Supposedly one was not able to loan or rent one out without running afoul of the BATF. I suppose that just went out the window...

Possibly because they were not specifically addressed in law, but only in enforcement regulations, which, as we have seen can be somewhat..flexible

Perhaps it was one of those things that like Joe Biden said about prosecuting felons who tried to buy guns from dealers, "We don't have tine for that."....

[Bartholomew Roberts]

Thank you. This definition in law (not regulation) makes things easier to understand.

Just to clarify, that’s a regulatory definition (CFR) not a statutory one (USC). So, in this case ATF wrote the definition and it still lost. I’m not sure if they did a comment period on that.

[Aguila Blanca]

Originally Posted by Bartholomew Roberts

Just to clarify, that’s a regulatory definition (CFR) not a statutory one (USC). So, in this case ATF wrote the definition and it still lost. I’m not sure if they did a comment period on that.

Not certain, but I believe in order to be codified in the CFR (Code of Federal Regulations) a regulation must first have gone through the entire public comment period/process.

Regulations in the CFR are regulations, not statutes, but they carry the weight of law. This is unlike various BATFE "interpretations," which appear and disappear based on the tide, the phase of the moon, and the whims of the person occupying the White House.

[Geezerbiker]

Originally Posted by 44 AMP

Possibly because they were not specifically addressed in law, but only in enforcement regulations, which, as we have seen can be somewhat..flexible

Perhaps it was one of those things that like Joe Biden said about prosecuting felons who tried to buy guns from dealers, "We don't have tine for that."....

At $2k a pop, I think one would have to either go in one one with friends or rent it out to make it feasible.

[Spats McGee]

Originally Posted by Aguila Blanca

Not certain, but I believe in order to be codified in the CFR (Code of Federal Regulations) a regulation must first have gone through the entire public comment period/process.

Regulations in the CFR are regulations, not statutes, but they carry the weight of law. This is unlike various BATFE "interpretations," which appear and disappear based on the tide, the phase of the moon, and the whims of the person occupying the White House.

IMNSHO, the argument about non-compliance with the APA has a lot of potential for the 2A. If the BATFE has been making substantive changed with their classifications, re-classifications and "guidance," without meeting the APA's requirements, then prosecuting (or even threatening to prosecute) people based on those, that could be a real problem for BATFE.

And yes, for actual rule- or regulation-making, publication is mandatory.

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include--
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply--
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except--
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the rule.

5 U.S.C.A. § 553 (West)

I've often wondered by nobody has FOI'd all of the various determination letters. I know they're individually issued, but I think they're open records, subject to public inspection.

(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public--....

(2) Each agency, in accordance with published rules, shall make available for public inspection in an electronic format--
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;....

5 U.S.C.A. § 552 (West)