Fascinating CNN piece on an ATF case

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hso

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https://www.cnn.com/2019/10/11/us/ar-15-guns-law-atf-invs/index.html

For more than a year, Joseph Roh illegally manufactured AR-15-style rifles in a warehouse south of Los Angeles.
His customers, more than two dozen of whom were legally prohibited from possessing a firearm, could push a button, pull a lever, and walk away a short time later with a fully assembled, untraceable semi-automatic weapon for about $1,000, according to court records.
Roh continued his black-market operation despite being warned in person by agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives that he was breaking the law.
But five years after raiding his business and indicting him, federal authorities quietly cut a deal with Roh earlier this year and agreed to drop the charges.
Why?
The judge in the case had issued a tentative order that, in the eyes of prosecutors, threatened to upend the decades-old Gun Control Act and "seriously undermine the ATF's ability to trace and regulate firearms nationwide."
A case once touted by prosecutors as a crackdown on an illicit firearms factory was suddenly seen as having the potential to pave the way to unfettered access to one of the most demonized guns in America.
Federal authorities preferred to let Roh go free rather than have the ruling become final and potentially create case law that could have a crippling effect on the enforcement of gun laws, several sources familiar with the matter told CNN. Each requested anonymity due to the sensitive nature of the case and its possible implications.
 
OK. I can't get into PACER right now, but I found the Order.
 

Attachments

  • Roh, Ruling on R 29 Motion.pdf
    63.2 KB · Views: 9
Is it my imagination or is it only a matter of time before the legal description is changed to accurately describe all receivers produced today and possibly into the future?
 
Is it my imagination or is it only a matter of time before the legal description is changed to accurately describe all receivers produced today and possibly into the future?
I expect a rewrite of some kind, and this is no doubt what will be attempted. Whether it will be successful is a different question entirely.
 
I'm going to try to get hold of some other pleadings, but what I found interesting is that the gov't argued "we say X is a firearm, even though it doesn't meet the statutory definition, and it should be ruled a firearm because Roh knew we said X is a firearm." ATF could proclaim that wearing a blue shirt on Tuesday is illegal, too, but that doesn't make it so. Not even if they send me letters to tell me that it is, or come visit me to tell me that it is.

This is a prime example of why the other lawyers and I always harp on the actual language of statutes. It is important to know exactly what a law says.

ETA: I'm also amused at the first line of the article: "For more than a year, Joseph Roh illegally manufactured AR-15-style rifles in a warehouse south of Los Angeles." The lawyer in me says, "Ummm, no. That charge was dropped, so it was apparently not illegal, after all."
 
"For more than a year, Joseph Roh illegally manufactured AR-15-style rifles in a warehouse south of Los Angeles." The lawyer in me says, "Ummm, no. That charge was dropped, so it was apparently not illegal, after all."
Out of curiosity, can Roh sue for "false news" since it is, technically, a lie that was published for all to see?
 
Out of curiosity, can Roh sue for "false news" since it is, technically, a lie that was published for all to see?
What's the old saying? You can sue a ham sandwich?

I guess he could file the case, but I don't see it going anywhere. At the time he was building the ARs, the BATFE (at the very least) thought it was illegal. Besides, what would his damages be? Are the people who want to build 80% lowers suddenly going to quit going and find a different place to have build parties?
 
Well, I would assume the damages is more for his "reputation" among his friends, relatives, the community he lives in, possible future employers, etc.
I believe slander has more to do than a loss of business. The suit would be to help the press be more accountable for stories they publish. They (the press) have been known to sensationalize certain agendas.
 
Amazing that in official government documents, it contiually misidentifies a government agency. It starts out correctly identifying the ATF, but then inexplicably starts to refer to it as the AFT, and switches back and forth.

Roh's lawyer deserves his pay on this one-an elegant defense, well supported in case law.

Henceforth, were I designing guns, I would build two piece receiver guns similar to the AR, FAL, and Benelli Black Eagle. Almost all semiauto pistols would fit this niche as well. Of course, the ATF (or is it the AFT?) will be up late nights working on a redefinition of receiver.

Seems to me Roh would also have been smart to have them 'come off the line' with the upper and lower never assembled, leaving that (the insertion of the upper into the lower and sliding the pins in-what some people these days call "building an AR") to the parts buyer.

Perhaps Roh in the future should lead "classes" on building in which the buyer does most if not all of the build. Agent Jackson would have then himself violated California Law.
 
It's always been a puzzle to me why, in some designs (for example, the FAL, H&K, TSMG, Ruger Mark pistol), the upper receiver is the firearm, while in others (the AR-15, the M1911 pistol), the lower is. This has been totally arbitrary on ATF's part, and now, it seems, it's coming back to haunt them. You can bet that the ATF legal eagles will be burning the midnight oil to revise the Regulations to at least rationalize the discrepancies.
 
Here's the part that takes the wind out of it for me:

"His customers, according to records seized in the search, included 19 convicted felons, six domestic abusers, and one person prohibited from possessing guns “due to mental health unfitness.” One customer, who had a felony conviction for making terrorist threats, later admitted to buying guns and gun parts from Roh that he then trafficked in Mexico, according to court records."
 
His big mistake was selling completed guns (without an FFL) in addition to "parts." If it had just been "parts" (including, apparently, lower receivers) he could have beaten the rap entirely.

I have to give a lot of credit to his lawyer for mounting an imaginative defense. It helped that he had a sympathetic judge.
 
His big mistake was selling completed guns (without an FFL) in addition to "parts."

But that's the part which worked to the advantage of the Feds since it was the only leverage they had to stymie the broader implications.
Doesn't this whole thing have shades of bumpstock ban all over it? that is, arbitrary and conflicting definitions of a *thing*.
 
It's always been a puzzle to me why, in some designs (for example, the FAL, H&K, TSMG, Ruger Mark pistol), the upper receiver is the firearm, while in others (the AR-15, the M1911 pistol), the lower is. This has been totally arbitrary on ATF's part, and now, it seems, it's coming back to haunt them. You can bet that the ATF legal eagles will be burning the midnight oil to revise the Regulations to at least rationalize the discrepancies.
Whatever has a flat place. Random. The whole thing is the gun, so who cares what part has the serial, traditionally. Only quite recently has anyone thought about trading top and bottom halves, much less for civilian use where there are laws that matter.

Think how much random chance helped create markets. The AR would be much less "modular wonder gun" if the upper was the serialized part, wouldn't it?
 
After reading the full article, I believe the judge was incorrect in his preliminary ruling. From the article:

Under the US Code of Federal Regulations, a firearm frame or receiver is defined as: "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."

The law says "usually threaded" not "must be threaded." Further, an AR-15 lower receiver does contain the hammer and the firing mechanism.

According to his judge's preliminary ruling, almost all semiautomatic handguns also do not have a firearm frame or receiver, because on a striker fired handgun the frame does not house a hammer, bolt, or breechblock, and is not threaded to receive a barrel. Most semiautomatic handguns don't even have a barrel that threads onto the frame, they are captured within the slide by locking surfaces.
 
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After reading the full article, I believe the judge was incorrect in his preliminary ruling. From the article:

Under the US Code of Federal Regulations, a firearm frame or receiver is defined as: "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."

The law says "usually threaded" not "must be threaded." Further, an AR-15 lower receiver does contain the hammer and the firing mechanism.

According to his judge's preliminary ruling, almost all semiautomatic handguns also do not have a firearm frame or receiver, because on a striker fired handgun the frame does not house a hammer, bolt, or breechblock, and is not threaded to receive a barrel. Most semiautomatic handguns don't even have a barrel that threads onto the frame, they are captured within the slide by locking surfaces.
Read the definition again. It's conjunctive ("and").
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.
IOW, in order to meet that definition, the part must provide a housing for at least one of the items listed and for the firing mechanism.

Personally, I find the argument about the APA more interesting, because it calls the entire BATFE classifictation/re-classification system into question.
 
IOW, in order to meet that definition, the part must provide a housing for at least one of the items listed and for the firing mechanism.

It looks like this hinges on the definition of "firing mechanism," then? If so, what is the definition? If not, what am I missing?
 
For this judge, it seemed to hinge on "bolt," but to answer your question, I don't know. I looked in the CFR and "firing mechanism" isn't defined.
 
IOW, in order to meet that definition, the part must provide a housing for at least one of the items listed and for the firing mechanism.
Literally, the CFR definition of a receiver is a part that houses (a) the hammer, bolt, or breechblock (depending on the type of action), and (b) the firing mechanism. Whether it's threaded to receive the barrel is optional.

It's obvious that this was based on the traditional receiver of a bolt-action rifle. It's also obvious that the definition did not consider something like the M1911 pistol, where the functions are split between the frame and the slide.

For an AR-15, the literal application of the CFR definition would mean that the "receiver" is the combination of the upper and the lower. ATF could therefore have insisted that both halves be marked with the same serial number, or otherwise be mated in a permanent way. Allowing the markings to be placed only on the lower was a matter of practicality and convenience. Out of that arose the common (mis)conception that the lower alone was the "receiver."

Clearly, the regulation has to be amended to take into account the design of modern guns. The difficulty is that in some guns, the upper has been considered to be the receiver, whereas in others, the lower has. The regulation has to address this apparent arbitrariness.
 
The 1911 meets the definition.

The lower contains the hammer AND the firing mechanism.
Well, yes, but the slide is the breechblock. That creates enough ambiguity that it could be argued that the frame is not the complete receiver.

What about striker-fired pistols that have no hammer?

You see where this is going. Under the logic of the judge's tentative decision in the Roh case, upper and lower receivers -- and frames and slides for pistols -- would have to be manufactured and sold in matched, identically serial numbered sets. Otherwise, they would just be unregulated "parts" -- a situation which would invalidate any sort of gun control in this country. No wonder the government wanted to settle the case before it became citable precedent.
 
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