EP Armory 80% poly lower update

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Here's the long awaited response from EP (Eighty Percent) Armory. If you want to show your support, you can donate to the legal fund or make purchases from them - http://www.eparmory.com/Current-News-s/1845.htm

Stay updated on their facebook page - https://www.facebook.com/eparmory

4/1/2014

Our Loyal EP Armory Customers,

We have been going through some tough times here at EP Armory lately as the result of an ATF investigation into our polymer precursor receiver product (aka polymer “80% lower”). The investigation has hurt our sales, and we’ve been swamped with emails and phone calls asking about the situation and the legal status of our product. There has been lots of speculation, and rumors are going around. A lot of the information out there is wrong.

We want to set the record straight, but as hard as we have tried, we simply haven’t been able to respond to each inquiry individually. We hope this message, and information that has been published or will soon be published by our attorneys at Michel & Associates, P.C. will help answer some of these questions. You can access the available information about this investigation, related investigations, and a bunch of other helpful information, HERE.

ATF offices throughout the state of California and across the country have also gotten lots of calls from concerned citizens seeking direction relating not only to the legality of the sales of EP Armory’s product, but to “80% lowers” in general. And they aren’t happy with the vague “answers” they’re (not) getting from ATF.

Although EP Armory has been largely silent so far about the actions of ATF regulators in mischaracterizing our polymer precursor lower receiver product as a “firearm,” we have been taking concrete actions to protect both our interests, and the privacy rights of our customers. Our lawyers have been and are working hard on our, and our customers’, behalf. They are in discussions with representatives from the highest levels of the ATF to resolve the outstanding legal issues regarding our polymer precursor receiver product, and to get our property and records returned to us as soon as possible. Through these ongoing discussions with ATF officials, ATF lawyers, and lawyers with the United States Attorney’s Office our lawyers at Michel & Associates, P.C. hope to convince the ATF investigators that these polymer precursor receivers are not “firearms” under the law, should not be regulated as such, that these investigations should be concluded, and the seized records and property returned.

We need your support to win this fight! To help us fund and win this legal battle, we will set up an “EP Armory Legal Defense Fund.” We ask. . . Once we win our fight to resume sales of our EP80 polymer lower non-firearm, we will promptly ship EP80's! You can be among the first to receive a Polymer 80% Receiver once the legal issues are resolved. And we are confident that they will be back! Of course, if you would prefer to support us by purchasing another of our products, we still have the entire remainder of our product line available, including our aluminum 80% lower receivers, which the ATF has not mischaracterized as “firearms” under the law, and which were not seized. You can order our products HERE. We appreciate your support!

From the front lines in the fight for the right to keep and bear arms,

Sincerely,

EP ARMORY
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I might be missing something here, but it seems that the problem is BATFE claims (without proof) that the receiver is moulded and then filled (making it a firearm) while EP claims that the receiver is moulded around the existing block (making it NOT a firearm).

If those ARE the facts, this could have been put to rest in about as much time as it took me to post this by: OBSERVATION OF THE ACTUAL OPERATION.

What is the matter with BATFE? Are the too smart to figure this out?
 
Romeo 33 Delta said:
I might be missing something here, but it seems that the problem is BATFE claims (without proof) that the receiver is moulded and then filled (making it a firearm) while EP claims that the receiver is moulded around the existing block (making it NOT a firearm).

If those ARE the facts, this could have been put to rest in about as much time as it took me to post this by: OBSERVATION OF THE ACTUAL OPERATION.

What is the matter with BATFE? Are the too smart to figure this out?
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This was pretty much discussed to death in another thread, but the only thing that determines whether something close to being a firearm is in fact a firearm or not, is BATFE. There is no legal description of a 80% lower or 80% anything. BATFE makes the determination on a case by case basis. Most manufacturers submit a sample and get a determination from BATFE before they start production. It is still not clear to me whether of not EP did this.
 
Romeo, I think reviewing the actual Court Filings and Reference Materials Relating to ATF Investigations on Polymer Pre-cursor Receivers (aka 80% Lowers) in the link I posted will probably give you more factual information than any speculative discussion we could pursue.

What is the matter with BATFE?
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No comment. But do look at recent "misbehavior" of ATF and form your own conclusion. To me, action speaks louder than words. ;)

I have actually talked to EP Armory owner and staff the past several weeks and remained silent in support so as to not add to the speculation/false information until an official announcement came from EP Armory.

In my opinion, EP Armory never intended to break any law but whether ATF acted properly or not, I won't comment as courts will rule in time whether ATF did the right thing or not. At this point in time, arguing about speculations/false information won't help us. Instead, we should focus on facts and come together to support any fight to defend the Second Amendment and work to expand what "right to keep and bear arms" means.
 
Representative Thomas Massie in response to Mr. Jone's argument: "That will be up to a court to decide whether Ares Armor was manufacturing firearms, not congress or not ATF ... Ultimately ... the jury gets to decide in the end ..." - https://www.youtube.com/watch?v=jYDAuaI8mCw

Mr. Jones: "Yes, they do."
 
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Okay, I read the letter from the manufacture to the ATF, I read the letter from the ATF to the manufacture, and I read the letter from the new lawyer to the ATF.

The ATF said that when XYZ happened, the device became a firearm. The lawyer asserted to the ATF that they had misunderstood and mischaracterized, and the XYZ actually never happen.

Since XYZ never happened, BATF's letter does not apply to the manufacturer. Saying that thing happened does not mean that it did.

If I say that you killed someone and therefore you are guilty of murder, but in fact you never did it, it does not make it true that you were guilty of murder, when they supposedly dead person is standing there in front of us.

Letters that refer and give conclusions on things that never happened, are rather useless, wouldn't you say?
 
When the ancient Greeks first constructed a nuclear weapon, they became a nuclear power. This sentence has just about as much applicability to the real world as does the ATF's letter, wouldn't you say?
 
I am not a lawyer, however I hope there is some legal theory or precedent says when you have it done XYZ, you aren't guilty of doing XYZ, even if the prosecutor says you did XYZ.

Now we have an attorney risking perjury or something similar to that, stating that XYZ never occurred. We have the ATF, never having been there, deducing that XYZ did occur. Incorrect conclusions don't make reality.

Some judge somewhere is probably going to ask ATF to present their proof that XYZ occurred, and ask the lawyer back up his claim that XYZ never occurred, and then he's going to make a simple ruling.
 
In support of EP Armory/Ares Armor, I won't engage in any speculative discussion. I will try to post facts only and hope that discussion on this thread centers around those facts.

I hope you can honor my request.

Thank you.
 
The key factor is how easy the product is to complete into a working firearm, NOT the exact process by which the product ("precursor" or "80%" lower receiver) is made. There are no published guidelines on this, and the ATF makes the determinations on a case-by-case basis. Regarding these EP lowers, I think what raised red flags at the ATF was the fact that the material filling the FCG pocket was a different color, and thus the material to be removed could be easily identified. In addition, the material (polymer) was soft enough to be removed without sophisticated tooling (a simple Dremel tool would suffice).

Did the ATF overstep its authority? A court will have to decide that.
 
The only problem is, that's not what the ATF letter said, EHF letter gave a statement, and a Sequitur. If the statement is incorrect, then the conclusion will not follow. They can then make a separate statement based on a different argument as you propose, however they have not done thAt


Just as Pres. Obama has proclaimed, words must mean something.
 
AlexanderA said:
The key factor is how easy the product is to complete into a working firearm, NOT the exact process by which the product ("precursor" or "80%" lower receiver) is made. There are no published guidelines on this, and the ATF makes the determinations on a case-by-case basis. Regarding these EP lowers, I think what raised red flags at the ATF was the fact that the material filling the FCG pocket was a different color, and thus the material to be removed could be easily identified. In addition, the material (polymer) was soft enough to be removed without sophisticated tooling (a simple Dremel tool would suffice).
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My understanding of the issue is that how it is made is precisely the legal excuse they are using. In reality if they are not an FFL the ATF is not entitled to have the manufacturing process explained to them if the item is not a firearm, because if it is not a firearm they have no regulatory jurisdiction. However by saying it was made into a firearm initially the ATF are giving themselves authority to investigate a crime.

How they claim it is a firearm is by saying the outside receiver was first made, which would be a completed receiver, but was then filled. They claim that step produces a firearm, which is then merely filled, but having been made into a firearm remains a firearm. Thus a firearm was initially made without a license under that theory, and according to them having been a firearm remains a firearm.
While if the inside was made first and then the outside which would later be turned into a receiver molded around it then no complete receiver ever existed. Thus no firearm was made.
However the existence of the end product is not solid proof, and one can claim it was made either way.
One can strongly speculate though as filling a harder material with a softer one would be much easier manufacturing. It is also a gray area as milled traditional 80% receivers are of the same density and material throughout. While these are clearly something with portions made of different materials.

If the ATF simply raids places a lawyer can argue whether the raids were valid, whether evidence or items found were valid or admissible, and has many angles of attack. If the ATF is simply allowed to inspect and do not like what they see the individual has given up many of their rights regarding search and seizure by giving the ATF permission to inspect.
If the company is not an FFL they are not required to let the ATF inspect aspects of their business, and so the ATF can only be doing so from a criminal investigation angle, which requires warrants etc.
 
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The only problem is, that's not what the ATF letter said, EHF letter gave a statement, and a Sequitur. If the statement is incorrect, then the conclusion will not follow. They can then make a separate statement based on a different argument as you propose, however they have not done thAt
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Which ATF letter are you referring to? Is there an opinion letter regarding the polymer castings?
 
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http://michellawyers.com/wp-content/uploads/2014/03/ATF-letter-to-Jason-Davis-February-2014.pdf

The letter above is one of the items found when you click on post number two's link.

If you read page 2 of the ATF letter, you will see their primary complaint is XYZ, and it is the statement of the EP armory lawyer in a Nother letter, that XYZ never happened. XYZ, in this case is the completion of the outer portion of the part, prior to the inner portion.

I would completely buy the ATF argument that if that had occurred, the manufacture would have created a firearm. However, you have a lawyer putting his signature on a statement that this never occurred.

No one here is arguing that the ATF does not have the authority to make a determination. However no one here is arguing that the ATF can't write foolishness. And in this case they appear to have of done that. Foolishness, incorrect statements, wishful thinking, are not likely to pass muster with a judge.

Since the ATF does have the authority to evaluate products, hey judge is likely to ask them to reevaluate it, based on truthful claims and statements. Or, if the lawyer is found to have lied, there will be a different outcome.
 
Most manufacturers submit a sample and get a determination from BATFE before they start production. It is still not clear to me whether of not EP did this.
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The ATF can change their determination at will. Ask cavalry arms they were shut down after producing their guns for a decade. By the time the ATF decided they had done no wrong they were nearly out of business.
 
Since the ATF does have the authority to evaluate products, hey judge is likely to ask them to reevaluate it, based on truthful claims and statements. Or, if the lawyer is found to have lied, there will be a different outcome.
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Is it a possibility that the judge can force the ATF to actually define what an 80% lower is, and give guidelines they have to follow to come up with their determinations?
 
This is from the reference listed in the link from post #2 - http://michellawyers.com/wp-content/uploads/2014/03/Building-Your-Own-Firearm.pdf
VIII. BUILDING YOUR OWN FIREARM

Another way to obtain a firearm is by making one or assembling one from parts. This practice can be lawful under both California and federal law. Federal law prohibits “manufacturing” firearms without a license but only considers those who are “engaged in the business” of making firearms (i.e., those who devote time, attention, and labor to doing so as a regular course of business) to be “manufacturers” who need a license. This means that making a firearm for personal use does not require a license under federal or California law as long as you do not build an item that is prohibited to possess or make under California law.

Generally four different processes exist for building a personal firearm, and each has distinct legal implications, as outlined below.
229 18 U.S.C. §§ 921(a)(10), (21); 923(a)(1).


A. Creating a Firearm From a Prefabricated Frame or Receiver

First, you can purchase a finished “frame” or “receiver” and then assemble it with additional parts to complete the firearm. Laws generally do not prohibit acquiring firearm parts, but because federal law considers a “frame” or a “receiver” to be a “firearm,” as does California law governing firearm acquisition, you have to get the frame or receiver through an FFL just like any other firearm (discussed in Section VI) or meet one of the exceptions. As mentioned above, you also must be at least age 21 to purchase a receiver.

B. Creating a Firearm From an 80% Receiver

The second way is to machine a firearm either from completely raw materi- als or partially finished materials. Making a firearm from partially finished materials is more popular as it takes less skill. Generally, you start with an incomplete receiver commonly referred to as an “80% receiver” or “80% side plate.”

The “80%” denotes how close the receiver is to being a complete firearm – though this is more of an estimate since it is impossible to say what percentage of work remains for a given firearm, which can vary based on experience, available tools, etc. An “80% receiver” is not considered a “firearm” under either federal or state law for the purposes of transfers. You must machine the remaining “20%” to complete the receiver, at which point it is considered a “firearm.” Thereafter, you can either purchase the remaining parts (e.g., barrel, stock, etc.) or machine them from raw materials and then attach them to the receiver.

The firearm you build cannot be an item that is generally unlawful to possess or manufacture under either California or federal law
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docsleepy: Thanks. That letter reflects a "post-production" determination, which appears to be the initial determination.

jerkface11: Yes, they can change their minds, but since the Feb 7 letter appears to be the initial determination, and unless EP has an earlier opinion letter showing a different determination, it does not appear that they have done so.
 
I've read the documents. Thanks to bds for posting the link.

What's clear to me is the fact that EP did not ever have a letter of determination that the "80%" lower is not a firearm. In fact, the determination is the opposite - it was determined to be a firearm.
However, the BATFE made that determination of a firearm based on an assumption that is factually flawed.

What EP has done is paint the BATFE into a corner.
They have managed to get BATFE to be specific as to the reason why it is a firearm.

Now, with the involvement of the US court system, BATFE has to back down on that rationale due to the fact that they have misunderstood the manufacturing process.

The next problem for BATFE is that if they now come forward and change the criteria on how they judge a incomplete lower it will simply dig them further into the "arbitrary and capricious" hole they have been digging for a long time. (reference the recent silencer court ruling against them)
Add to that the fact that any changes they make to the way they make determinations will have an effect on previous determinations, and if they decide that the previous determinations are "grandfathered", they just dig that a&c hole even deeper.

I think they should have just left things alone.
 
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wildbill, I think that assessment is on target. Also, it is a very neat trap that EP and Ares have sprung here. Makes me wonder if it was planned.

So where do you think this might go? Might we wind up with a ruling that parts must be assembled to a certain point of functionality before the assembly (and not any individual part) is considered a firearm?
 
JRH6856 said:
...Might we wind up with a ruling that parts must be assembled to a certain point of functionality before the assembly (and not any individual part) is considered a firearm?
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No, it won't go that far. By statute (18 USC 921(a)(3)(B)) the frame or receiver is a firearm. But we might get some greater clarity on what "may readily be converted" means as used at 18 USC 921(a)(3)(A):
...may readily be converted to expel a projectile by the action of an explosive....
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Clarity on readily converted would be good. As a kid, I used to use firecrackers to shoot BBs from the steel pipe arms of my grandmother's lawn chairs. Made an "interesting" shotgun that I would not want to be on the wrong end of. There are a lot of things that can be readily converted that most people don't think of, and lawn chairs are just one of them. :uhoh:
 
Unfortunately, "readily converted" means whatever the ATF wants it to.
 
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