ATF prosecution for pistol as SBR

[Erik88]

It appears we might have the first known case of the ATF going after someone for their AR15 pistol with brace. There is a lot to dig through here and not all of it is very clear. It seems the ATF convinced the US attorneys office to prosecute this man either for having a forward grip on his AR15 pistol or having the brace, or both. I'm going to pull out a few highlights but there is more in the link.

"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. 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."

Here is the part that gets really interesting. Remember those letters that were circulated from the ATF saying there was nothing wrong with shouldering the brace? It appears the ATF is trying to keep those from being used in this case. "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 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,”

"Thankfully, after only deliberating for a very short time over lunch, the jurors came back with a verdict of not guilty. However, Mr. Wright has likely incurred tens of thousands of dollars of attorney fees and costs fighting for his freedom – all because ATF decided that it would invent a new interpretation of the law and it did so without notifying the Industry or the public. Let that sink in for a couple minutes…"

https://blog.princelaw.com/2018/10/28/atf-unhinged-prosecutions-made-up-out-of-whole-cloth-you-might-be-next/

 

[Chucktshoes]

Earlier this year the ATF referred a case to a US Atty. for prosecution of an owner of an AR pistol for making an SBR after adding a cheek rest to his AR pistol tube. Luckily the jury returned a verdict of not guilty  

https://blog.princelaw.com/2018/10/28/atf-unhinged-prosecutions-made-up-out-of-whole-cloth-you-might-be-next/

Of particular note is that the prosecuting attorney sought to preclude the ATF’s own FATB letters regarding the use of braces, cheek rests, and foregrips from being admitted as evidence. Their position was that the letters were not exculpatory because they weren’t about that particular rifle and that particular product in that particular configuration and did not set a precedent. 

To add insult to injury, it appears most of the court documents have been sealed after the loss. 

It doesn’t matter who is in office, the ATF is still gonna do ATF things. 

Edited October 29, 2018 by Chucktshoes

[GlockSpock]

41 minutes ago, Erik88 said:

It appears we might have the first known case of the ATF going after someone for their AR15 pistol with brace. There is a lot to dig through here and not all of it is very clear. It seems the ATF convinced the US attorneys office to prosecute this man either for having a forward grip on his AR15 pistol or having the brace, or both. I'm going to pull out a few highlights but there is more in the link.

"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. 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."

Here is the part that gets really interesting. Remember those letters that were circulated from the ATF saying there was nothing wrong with shouldering the brace? It appears the ATF is trying to keep those from being used in this case. "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 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,”

"Thankfully, after only deliberating for a very short time over lunch, the jurors came back with a verdict of not guilty. However, Mr. Wright has likely incurred tens of thousands of dollars of attorney fees and costs fighting for his freedom – all because ATF decided that it would invent a new interpretation of the law and it did so without notifying the Industry or the public. Let that sink in for a couple minutes…"

https://blog.princelaw.com/2018/10/28/atf-unhinged-prosecutions-made-up-out-of-whole-cloth-you-might-be-next/

 

I for one am 100% against the NFA as a whole, but also concede 100% that the majority of "braces" are specifically designed to skirt around the letter of the law. Functionally speaking, they are against the spirit of the law.

However, if they are indeed carefully crafted to "not be a stock but can be used as a stock", then they should be legal. Options if the ATF doesn't like it? Get legislation changed to specify them as SBR's instead of pistols.

If I recall (and trust me, I did a lot of research on this), those letters typically claim to only be relevant to the person the letter is addressed to. Example, @Erik88 asks ATF if shouldering brace is ok, they tell him yes. However, that letter species it is only good for him. I could make a copy of the letter, but that letter really doesn't affect me and in truth was just an opinion from a specific agent to begin with. I think this probably sets precedent for those letters not being used in this or other cases.

I decided, much to my dissatisfaction, that it wasn't worth it to me to play the brace-not-an-sbr game so I sold the Scorpion.

I wish someone would simply push forth legislation legating all SBR's. Don't try to attach other pro-gun things to it. Keep it simple, one thing at a time. If removed from the NFA, I'd probably go buy/build several SBR's over the course of a year or two.

It is confusing. I hate that. I'm glad they found him "not guilty". I'm curious to see how a case such as this sets precedent for the future. I think it also helps establish a precedent that SBR's themselves could be removed from the NFA.

[Chucktshoes]

@Erik88 looks like we were reading the same things at pretty much the same time. 

 

Looks like the brace game just got a whole lot riskier. 

[Omega]

Time to sue the State that allowed the prosecution of these cases.  It's time we begin an assault on the insane rules the ATF makes, and the entire NFA as a whole.  Seems to me the NFA is nothing more than a tax, and illegal tax, on the 2nd Amendment, and like the Poll Tax, should be done away with.

[gregintenn]

Thanks for posting this.

[Defender]

This prosecution scares me.  If the conservatives retain the house and increase the Senate, we need to get some of this crap done away with.  Silly ass rules the ATF uses are just confusing garbage.

[Oh Shoot]

Another odd one happened in CT a few months ago, where a certain gun shop was informed that their pistol config was in violation of the NFA.

- mainly to skirt CT state law, the config was a brace on a pistol with 26" or more OAL, with added VFG, which made it a "firearm" .

- BUT, they used a folding brace, and out of the blue, ATF decided that the over all measurement should be with the brace folded, which of course made the OAL less than 26", and hence with the VFG, it was an AOW.

- Note that AFT measures rifles with a folding or extendable stock open to maximum length, so this determination is the exact opposite.

 

https://www.thefirearmblog.com/blog/2018/05/24/oal-brace-folded/

- OS

Edited October 29, 2018 by Oh Shoot

[Omega]

18 minutes ago, Oh Shoot said:

Another odd one happened in CT a few months ago, where a certain gun shop was informed that their pistol config was in violation of the NFA.

- mainly to skirt CT state law, the config was a brace on a pistol with 26" or more OAL, with added VFG, which made it a "firearm" .

- BUT, they used a folding brace, and out of the blue, ATF decided that the over all measurement should be with the brace folded, which of course made the OAL less than 26", and hence with the VFG, it was an AOL.

- Note that AFT measures rifles with a folding or extendable stock open to maximum length, so this determination is the exact opposite.

 

https://www.thefirearmblog.com/blog/2018/05/24/oal-brace-folded/

- OS

it may take a bit, and $$, but I expect this to be resolved in the gun shop's favor.  ATF can't have double standards, as the owners rebuttal letter makes a convincing argument that there are other weapons with approved BATF letter that are measured differently.

[mikegideon]

I have been waiting for this one. Everybody out there is building these things right now. Sooner or later, I expect the ATF to reverse their position. But, I have all along.

[Omega]

47 minutes ago, mikegideon said:

I have been waiting for this one. Everybody out there is building these things right now. Sooner or later, I expect the ATF to reverse their position. But, I have all along.

Possibly, but in the meantime I'll keep using it.  ATF may try going full retard on this one day, but I for one will not keep from doing things legally, while they still are.  If they change the interpretation, so be it, I'll burn that bridge when I get to it.  It's like driving 55 on I-24 because they may change their minds about the limit.

[LngRngShtr]

the good side is its an AR so re configuring to a rifle isn't impossible, yeah I hate this change minds with the weather stance the BATF has but until the courts do something solid, it is your option. 

and I just finished piecing together a .300 Black  guess I could always store it away and get a can pinned and welded on if it comes to that.  

[btq96r]

Couldn't help but this of this scene from Game of Thrones as I read this thread...

 

 

Edited October 30, 2018 by btq96r

[mikegideon]

2 minutes ago, btq96r said:

Couldn't help but this of this scene from Game of Thrones as I read this thread...

 

 

You know she was popping her brother, right?  Probably goes on at the ATF too.

[Capbyrd]

Everyone is focusing on the brace thing.  

First off, this has nothing to do with an arm brace.   It was a cheek weld extension from Maxim Arms.  

Secondly, the most important part of this case is the ATF and AUSA successfully hiding evidence from the jury (the letters) and then the court sealing the records of the case.   This is very bad for us.  

And I know that the general consensus has always been that if the letter isn't addressed to you that it doesn't apply to you.  But the BATFE knows that if you introduce those letters in front of a jury, the jury isn't going to rule that way.  The jury is going to say, well you allow it for them, its legal for the defendant too. 

[Omega]

Any decent lawyer can introduce reasonable doubt about the ATF's rules.  All you have to do is get an ATF guy on the witness stand and ask them to let the jury know the legality of about 5 different lowers with braces.  Any jury member with half a brain will call BS on these cases with or without letters.  There are plenty of examples where evidence is not allowed, which to the layman, should be, but that's just the way it goes, it all depends on the arguments and the judge's viewpoint.

[DaveTN]

I figured this would happen, so when I bought my AR Pistol I decided against a brace. Unless things have changed the BATF doesn’t make laws; they give opinions on them. DA’s and Judges are not bound by those opinions.

[GlockSpock]

3 hours ago, Omega said:

Any decent lawyer can introduce reasonable doubt about the ATF's rules.  All you have to do is get an ATF guy on the witness stand and ask them to let the jury know the legality of about 5 different lowers with braces.  Any jury member with half a brain will call BS on these cases with or without letters.  There are plenty of examples where evidence is not allowed, which to the layman, should be, but that's just the way it goes, it all depends on the arguments and the judge's viewpoint.

But...that could also be done inversely to a certain extent. What happens if the ATF shows the jury 5 different short barreled AR-15's with different stock options on them. Then shows the jury a "pistol" with a brace such as the ones from SB Tactical (would be the defendant's firearm, what they were on trial for). The ATF is able to show how functionally, it can be used as a stock. Then, "If these 5 stocks to the right constitute a short barreled rifle and require a tax stamp, why is it that the defendant thinks he can use this "brace" as a stock in lieu of paying his tax?".

It is absurd, and shows the absurdity of why short barreled rifles should be non-NFA, but it is the law.

Personally, I think the ATF screwed up when they started allowing these not-a-stock-but-can-be-used-as-a-stock braces in the first place. I am 100% against the NFA in concept, but I do respect that they are laws that have to be followed. And I fully admit that most of these "braces" are in spirit a violation of the NFA.

[mikegideon]

11 minutes ago, GlockSpock said:

Personally, I think the ATF screwed up when they started allowing these not-a-stock-but-can-be-used-as-a-stock braces in the first place. 

I have always thought that. I don't like the NFA any more than anybody else. But if you're gonna have an SBR designation...

[Omega]

5 minutes ago, GlockSpock said:

But...that could also be done inversely to a certain extent. What happens if the ATF shows the jury 5 different short barreled AR-15's with different stock options on them. Then shows the jury a "pistol" with a brace such as the ones from SB Tactical (would be the defendant's firearm, what they were on trial for). The ATF is able to show how functionally, it can be used as a stock. Then, "If these 5 stocks to the right constitute a short barreled rifle and require a tax stamp, why is it that the defendant thinks he can use this "brace" as a stock in lieu of paying his tax?".

It is absurd, and shows the absurdity of why short barreled rifles should be non-NFA, but it is the law.

Personally, I think the ATF screwed up when they started allowing these not-a-stock-but-can-be-used-as-a-stock braces in the first place. I am 100% against the NFA in concept, but I do respect that they are laws that have to be followed. And I fully admit that most of these "braces" are in spirit a violation of the NFA.

I detest the NFA, but the ATF is charged with deciding legality, if they have said braces are legal then so be it. spirit be damned.  The DA can surely say that, but any jury member can ferret out the truth, and that is that the law in and of itself gives defendants reasonable doubt. If the DA opens that can of worms, I think it would be easy enough to get those letters introduced saying the brace is legal, and if I recall correctly the letter is to the manufacturer, not the user.

Original Open Letter (Bad to shoulder)

https://www.atf.gov/file/11816/download

Clarification Letter to Sig (Ok to Shoulder)

https://www.sigsauer.com/wp-content/uploads/2017/04/atf-letter-march-21-2017.pdf

But, even this letter, to clarify the past letter, doesn't do a good job at clarifying a damned thing.  In fact, it, IMO, keeps it as muddy as before, if not more so.  According to the ATF, just taking off the Velcro strap off the Sig Brace makes it an SBR, while the Blade doesn't come with a strap but is legal.  tell me a good lawyer can't raise doubt by showing the jury these ridiculous rules.

https://www.nraila.org/articles/20170425/brace-yourself-atf-reconsiders-obama-era-policy-on-stabilizing-braces

 

[A.J. Holst]

I don't have a dog in this fight and won't put myself in a position to fight it.

The question is how many able bodied shooters bought a brace to be used as designed? My guess is not many.

Letter vs. spirit I know and agree legal gun owners don't do bad things with SBRs, taxed and tagged or otherwise.

Adding in the double standards, supression of information, supporting docs, or evidence, I dont have a few thousand extra to pay an attorney (for federal charges!) to play a game I shouldn't have to play.

 

[Capbyrd]

10 minutes ago, Gotthegoods said:

I don't have a dog in this fight and won't put myself in a position to fight it.

The question is how many able bodied shooters bought a brace to be used as designed? My guess is not many.

Letter vs. spirit I know and agree legal gun owners don't do bad things with SBRs, taxed and tagged or otherwise.

Adding in the double standards, supression of information, supporting docs, or evidence, I dont have a few thousand extra to pay an attorney (for federal charges!) to play a game I shouldn't have to play.

 

 

Again, this case has nothing to do with braces. 

[Oh Shoot]

1 minute ago, Capbyrd said:

 

Again, this case has nothing to do with braces. 

Correct. No one has yet been charged by their use of an unmodified brace as supplied by the manufacturer.

Even the Freedom Shoppe extreme anomaly regarding the braces with a folding mechanism and VFG was a matter of ceasing their sale and confiscation from both the store and owners, but no arrests.

- OS

[btq96r]

6 hours ago, Capbyrd said:

First off, this has nothing to do with an arm brace.   It was a cheek weld extension from Maxim Arms.  

Secondly, the most important part of this case is the ATF and AUSA successfully hiding evidence from the jury (the letters) and then the court sealing the records of the case.   This is very bad for us.  

Then I can understand the reason for the .gov to wanting the letters excluded.  If this case isn't about a brace, then the letters, which are written to address the topic of the braces, aren't relevant to the case at hand. 

[Capbyrd]

54 minutes ago, btq96r said:

Then I can understand the reason for the .gov to wanting the letters excluded.  If this case isn't about a brace, then the letters, which are written to address the topic of the braces, aren't relevant to the case at hand. 

The letters that they wanted excluded were pertinent the firearm above.  The pistol the guy built had a cheek weld receiver extension, not a brace.  There was a letter about that.  The extension was modified by adding a cane tip to the end.  There is a letter about that.  Those are the letters that were excluded. 


The cheek weld was also modified to extend and I don't think there is any letter about that.  And most well educated NFA people believe that specific modification is what caused this case.