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ATF and the law

The ATF has a history of disregarding the law when it suits them. And here are a couple of cases to illustrate that. The first is the ATF’s position that a pistol with a forward grip is an Any Other Weapon. As a result of their contention is that such a configuration requires said weapon to be subject to NFA registration and a $200 tax.

In the case of US v. Davis, the court ruled that a pistol with a vertical fore grip is not an Any Other Weapon because it’s still a pistol:

25. Title 26, United States Code Section 5845(e) defines “any other weapon” as:

… any weapon or device capable of being concealed from which
a shot can be discharged through the energy of an explosion
… Such term shall not include a pistol or revolver having a
rifled bore, or rifled bores, or weapons designed, made or
intended to be fired from the shoulder and not capable of
firing fixed ammunition.

26. A “pistol” is defined in Section 5845 as

A weapon originally designed, made and intended to fire a
projectile (bullet) from one or more barrels when held in one
hand, and having (a) a chamber(s) as an integral part(s) of or
permanently aligned with, the bore(s); and (b) a short stock
designed to be gripped by one hand and at an angle to and
extending below the line of the bore(s). 27 CFR 178.11
(emphasis added).

27. Even after being modified with grips, the pistols are still “pistols” as defined above and not “any other weapon” as defined by 26 U.S.C. section 5845(e).

Despite this ruling, the ATF’s official position is still that a pistol with a forward grip is an Any Other Weapon and they will arrest and prosecute you to the tune of ten years in jail and a $250K fine.

Another of their policies that has been smacked down is their contention that once a machine gun, always a machine gun. That is to say, a firearm receiver that was once a machine gun will always be a machine gun no matter if said receiver has been modified and rendered incapable of fully automatic fire. This position by the ATF has been slapped down in the case of F.J. VOLLMER COMPANY, INC., v. JOHN W. MAGAW, DIRECTOR, BUREAU OF ALCOHOL, TOBACCO & FIREARMS, U.S. DEPARTMENT OF THE TREASURY. In this case, it was ruled that:

This case presents a recurring question under the Equal Access to Justice Act: In evaluating a claim for fees under the Act, what standard of reasonableness should a court use to determine whether an agency’s action was “substantially justified”? In the case before us, this court previously overturned a decision by the Bureau of Alcohol, Tobacco and Firearms, holding the Bureau’s action was inconsistent with the governing statute and would have produced an “incredible” result. The district court nonetheless found the agency’s decision to have been substantially justified and thus denied petitioner reimbursement for fees and expenses. Reviewing the district court’s ruling under the deferential abuse-of-discretion standard, we conclude that the agency’s position was not substantially justified because it was wholly unsupported by the text, legislative history, and underlying policy of the governing statute.

There is also another case (US vs. Dwight Edward Forrester in Florida) that ruled something similar but I am unable to find a link to the text of the case. There is discussion of the case here. Despite these rulings, the ATF will still prosecute based on its position. It does beg the question though: how do you stop this? Even if we win, they continue business as usual and act like there was no ruling.

The ATF has not had a good couple of years, btw. Some recent exploits:

A circuit court smacks them down for their ruling on model rockets;

An agent testified under oath that the NFRTR (the NFA weapons database) was corrupt;

Having budget issues due to mismanagement;

Being investigated for breaking he law at Virginia gun shows.

And they’ve had funds cut for some of their rather, err, dubious programs.

The ATF Director has resigned over excessive and lavish spending.

The now former head of the ATF ordered staff to do his nephew’s homework.

And employees are coming forward with allegations of mismanagement.

Update: emdfl points out in comments that:

I seem to recall that the tax on an AOL is $5.00, not $200.00

Sorta: The tax is $5 if you buy one. If you build one (i.e., add a vertical forward grip to your Glock) then it’s $200.

Update 2: And how could I forget the Kwan case (it has been almost two weeks!):

The jury had more common sense than the ATF and decided that this did not meet the standard of “readily convertible.”

More here.

16 Responses to “ATF and the law”

  1. emdfl Says:

    Losses in court mean absolutely nothing to the Dictat of the ATFE. They either ignore them all together or claim that the rulings only apply within the area of jusrisdiction of the finding court – and then usually ignore them in that area as well.

  2. emdfl Says:

    Almost forgot – I seem to recall that the tax on an AOL is $5.00, not $200.00

  3. SayUncle Says:

    The tax is $5 if you buy one. If you build one (i.e., add a vertical forward grip to your Glock) then it’s $200.

  4. gattsuru Says:

    This shouldn’t be surprising, and it’s similar to what we’ll see in D.C if Parker doesn’t get overturned.

    If they lose, the worse that happens is they get their paws smacked and one person gets off. That doesn’t hurt them at all — they get their paws smacked whenever they don’t go after someone the Brady Bunchites are nuts over, and the people are innocent in the first place. Sure, they might pay court costs, but that’s all other people’s money, and it’s assigned for the purposes of legal use in the first place.

    If they win, they’ve got material to act on, and a public relations victory.

    If they threaten enough people, even if they fail nearly every time, it might as well be law — it’s not viable for most folk to deal with the court cases, potential jail time, and risk of a wacko judge.

  5. Ahab Says:

    So I guess I’m going to have to put my plans for a .17 HM2 10/22 PDW on hold.

  6. BobG Says:

    I still think they should close down the BATF and transfer the personnel somewhere that they would be useful, like patrolling the US/Mexico border.

  7. Snowflakes in Hell » ATF Court Smackdowns Says:

    […] has a good post up about the ATF getting smacked down by federal courts over the “one a machine gun always a machine gun” and their AOW […]

  8. Michael Says:

    Why am I not surprised at the BATFE response to ignore a federal judge’s ruling. This has to be the most rouge federal agency I’ve ever seen.

  9. straightarrow Says:

    BobG Says:
    I still think they should close down the BATF and transfer the personnel somewhere that they would be useful, like patrolling the US/Mexico border.

    Vehemently disagree. I grant they should all, ALL, be transferred. However, the only appropriate destination for them would be a federal penitentiary

  10. straightarrow Says:

    Oh, yeah, just to clarify; on the no-go side of the bars

  11. SayUncle » Speaking of ATF troubles Says:

    […] just listed some, but here’s another: The Bureau of Alcohol, Tobacco, Firearms and Explosives no longer […]

  12. Heartless Libertarian Says:

    Don’t forget the recent Kwan case in WA, where a jury decided that just because the Winchester M14 receiver had been a machinegun at one time, it wasn’t a machinegun now, even after the agent went after it with power tools to undo welding and replaced the trigger group with one that allowed FA fire.

  13. Chris Byrne Says:

    Oh and don’t forget Shulz vs. IRS which makes clear that administrative procedures and rulings of executive branch agencies (and the ATF is one) do not have the force of law without a direct and specific court order.

    All the ATFs “enforcement” actions are by administrative procedure; so unless they get a court order FIRST, anything they do is invalid.

  14. ParatrooperJJ Says:

    Their position is actually correct. Federal district court rulings only apply in that district.

  15. SayUncle » ATF Targets Gun Dealer Says:

    […] I discussed the case before here. […]

  16. SayUncle » More stellar performance from ATF Says:

    […] And getting smacked down for disregarding the law. […]

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