Further charge expected for Bellevue gun collector

[Langenator]

Can't he work with the premise that SBR's are military weapons and requiring registration is an infringement on the right to bear arms?

Not in the 9th Circuit. See Silviera v Lockyer. (Also read Kozinski's brilliant and oft-quoted dissent while you're at it.)

Also, does anyone know the history of WA state law on SBRs? I know they're banned by state law now, as are FAs and SBSs, but I also know that FAs were legal from 1991-1994 (AG changed the interpretation of the law in 1991, Legislature changed the law in 1994) and any acquired during that time period are grandfathered.

I'm guessing that since he wasn't charged under state law that the weapon in question was grandfathered.

 

[Elza]

Interesting. An M-14 actually is an assault rifle. But, since they have abused the term so badly, by applying it to any rifle they don’t like, now they have to call it a machine gun. They have to mislabel one because of the lying abuse of the original term.

 

[Langenator]

It's not that. Legally, anything that fires more than one round per trigger pull is a 'machinegun'.

 

[Henry Bowman]

Legally, anything that fires more than one round per trigger pull is a 'machinegun'.

Or that is "readily convertable" by BATFE with power tools in 90 man-hours.

 

[Langenator]

Power tools and complete replacement of the trigger group with one having a full auto sear.

 

[Orthonym]

Oh, don't forget the shoestring.

M'self, if I heard auto weapon fire, I'd try to get behind something thick and dense.

If the auto-weapon fire were provided by somebody I knew to be a loathsome evil socialist person, I'd hope I'd have the courage to get up from behind cover and shoot that person DRT.


And, yes, I'm wiling to answer to the Lord for everybody I've killed.

So far, it's lotsa insects, a rat or two, a coupla birds, and maybe a dog who ran in front of my car.

 

[DMF]

Wouldn't it be possible using the BATFE's methods as described to claim that a M-14 stock with no other parts on it was in and of itself a machine gun?

No because a stock is NOT a reciever. A receiver is the part that is a gun by definition. For example you can order all the parts for an AR-15 through the mail from another state, with no FFL with the exception of the lower receiver. The lower receiver, all by itself and without any other parts is firearm, and must be transferred by an FFL if coming from another state. However, all the parts for an AR-15, minus the receiver, are not a firearm.

 

[Jim K]

An M14 is a machinegun by definitition, whether it is has the selective fire parts or not, whether it can fire full auto or not. The receiver markings make it a machinegun under the law.

But BATFE seems to think that jurors will not accept the idea that the markings on the gun make it a machinegun, so they almost always try to restore the full auto capability. That way they can show videos of the gun firing full auto, and impress everyone. (And get their budget increased.)

That was a big case, because the anti-gun gang tried to blame it on the NRA or on "opponents of reasonable gun control." Apparently, BATFE and the local authorities are still carrying water for the Brady bunch and are going after anyone they think they can hang something on, probably hoping they can prove Dick Cheney or Karl Rove was the shooter.

Jim

 

[Langenator]

Yeah, I seem to remember a bit of a dust-up between the local FBI office and the US Attorney's office over it a while back.

Seems the FBI SAC had decided that they had too many agents devoted to an investigation that wasn't going anywhere, and wanted to re-assign most of them to other cases. US Attorney's office didn't like that, and the Seattle SAC ended up getting re-assigned.

 

[obxned]

If they wanted to bust Mother Teresa, they'd have gotten her! At a certain point 'prosecution' becomes 'persecution'. The BATF can't even see that point in their rear view mirror!

 

[Langenator]

The real reason the Feds have a hard-on for this case is because of the tenuous possible connection to the Tom Wales murder case.

The DOJ/FBI has placed a whole lot of importance on solving, which has dragged on for years and I think at this point they're pretty much out of leads and extremely frustrated.

I actually seem to recall that the Seattle SAC had decided he had too many agents assigned to the case, which was going nowhere, and wanted to pull most of the agents off and assign them to other cases. Higher ups in the DOJ raised a big stink, and Wales case got transferred to the Portland office, and the Seattle SAC got reassigned.

Personally, I think the initial search warrant was pretty damn flimsy. I don't see how the fact that he bought a pistol barrel of the same type that was used in a murder, a barrel that he now can't account for, and he just happens to live in the same county as the victim, constitutes probable cause. I'm sure the fact that there had to be several judges in the area who knew Tom Wales, and probably some who were friends with him, didn't hurt when it came time to get a warrant.

Now, Mr Kwan may have made a mistake when he denied ever having two of the barrels. If he'd said something like "Well, I bought two in case I messed up fitting the first one to the pistol, and, well, it was a good thing I did, because I screwed it up bad, barrel wasn't salvagable, so I threw it away," the Feds might not have gotten such a hard-on for him, although I doubt it.

 

[Historic Arms LLC]

I was there....

First: The ATF did NOT say 90+hrs...They said 30 minutes + parts.

The rifle in question started life out as a Winchester M-14. At some point it was redesigned and remade into a semi auto only weapon.

The point that was argured was "once a machinegun, always a machinegun". Thankfully it is now on the record as not being true.

Then the points of readily restored were brought up, unfortunately the lack of structured testing methods was serious determent to the ATF as the fact that time and a timeline was missiing from the FTB report. If your gonna argue "readily restorable" time is a significant factor in court.

The real kicker here is that US v. Thompson center was ignored by the court on the SBR charge. Very strong if appealled. I was never asked on direct or cross about the SBR...

ATF admitted they took the PRESAMPLE by mistake during testimony. The fact that ATF actually assembled the SBR is even written in the Seattle Times. The ATF with a straight face claimed "otherwise combined" during the testimony.

There will be some interesting reading once transcipts are available.

Len Savage

 

[jselvy]

The BATFE should have to confine itself to product testing, as a consumer safety agency. I cannot see how they can have any other purpose as they have fumbled the enforcement end so badly.
BTW Welcome to THR

Jefferson

 

[ServiceSoon]

Not in the 9th Circuit. See Silviera v Lockyer. (Also read Kozinski's brilliant and oft-quoted dissent while you're at it.)

This took place in cali? I understand why my scenario isn't possible, because the cali courts have ruled the the second is a collective right and not an individual right.

 

[Bartholomew Roberts]

The real kicker here is that US v. Thompson center was ignored by the court on the SBR charge. Very strong if appealled. I was never asked on direct or cross about the SBR...

Are you the defendant? If so, my read is that U.S. v. Thompson Center Fire won't help you much. The whole point of that case is that you can legally use both a Thompson Contender carbine with 16" barrel and a Thompson Contender pistol with a 10" barrel - so you don't create an SBR just by having both in your possession.

The problem here is that the defendant can no longer own the VP70 machine pistol and does not own it any longer. He has only the VP70Z and a stock that it is illegal to attach to a VP70Z. This makes for constructive possesion of an SBR under current ATF interpretation of the law.

I'm skeptical the 9th Circuit is going to extend Thompson Center-Fire to protect the defendant here given the different facts. He might have more luck appealing it to the D.C. Circuit.

 

[Langenator]

This took place in cali? I understand why my scenario isn't possible, because the cali courts have ruled the the second is a collective right and not an individual right.

PRK courts are irrelevant, but Silviera was a federal 9th Circuit ruling, and Washington state is also in the 9th Circuit.

Bart, I think what was stated was that Kwan had two VP-70s-one that was a legal SBR and to which the stock or stocks belonged, and a VP-70Z that was simply a pistol. When the Feds took the M-14, they took the SBR VP-70, but left the VP-70Z and at least one stock. Then they came back later and added the "possession of an unregistered SBR" charge.

That being said, the lack of some sort of written standard for what constitutes a MG, as well as written standardized testing protocol, is a very serious problem that creates opportunity for serious abuse by the ATF. Obviously, the standard that the receiver is the MG, and "once a MG, always a MG" is pretty stupid if it can't fire full auto without other parts,and which the owner of the receiver is not in possession of.

Ideally, SCOTUS would simply kill the NFA, but until that happens, the next best thing would be for Congress to codify a clear and workable definition of a machinegun, SBR/S, etc, as well as standards for how said items should be tested, but I don't think Congress is technically competent to do it.

 

[Bartholomew Roberts]

When the Feds took the M-14, they took the SBR VP-70, but left the VP-70Z and at least one stock. Then they came back later and added the "possession of an unregistered SBR" charge.

My understanding was that when the defendant stopped being an FFL, he had to surrender the VP70 machine pistol (which was the only firearm that could legally have the stock attached to it) and that the seizure of the M14 and other charges happened some time after that.

If your facts are the correct ones, then Thompson Center Fire would absolutely be on point for this case and should dispose of the SBR charges pretty clearly. I think you could even get summary judgment on that.

That being said, the lack of some sort of written standard for what constitutes a MG, as well as written standardized testing protocol, is a very serious problem that creates opportunity for serious abuse by the ATF.

I would think the D.C. Circuit will be seeing some cases that are going to clarify the bounds of what makes an MG or the ATF will have to curtail its hyper-aggressive enforcement so that idiotic cases like this don't establish bad precedent for their expansive definition.

 

[Historic Arms LLC]

VP-70m was a pre-may and was never supposed to be taken, seems the form three was not properly prepared by NFA years back. Governments own exhibit of the NFRTR history made the point that it was imported in 77.

 

[Bartholomew Roberts]

Well, I would hope that if possession of the VP70M was in dispute that would be sufficient legal reason to justify the stock and make Thompson Center Fire come into play.

When you say the trial court ignored Thompson Center Fire, you mean they argued it at trial and the court decided it didn't apply? I'd love to read the reasoning behind that.

 

[Langenator]

Something I just thought about that may say a good bit about the Feds' motives in this case. RCW 9.41.220 is, in my opinion, a good bit more clear in terms of what is prohibited than the federal law

RCW 9.41.220
Unlawful firearms and parts contraband.

All machine guns, short-barreled shotguns, or short-barreled rifles, or any part designed and intended solely and exclusively for use in a machine gun, short-barreled shotgun, or short-barreled rifle, or in converting a weapon into a machine gun, short-barreled shotgun, or short-barreled rifle, illegally held or illegally possessed are hereby declared to be contraband, and it shall be the duty of all peace officers, and/or any officer or member of the armed forces of the United States or the state of Washington, to seize said machine gun, short-barreled shotgun, or short-barreled rifle, or parts thereof, wherever and whenever found.

Said law went into effect in 1994. From 1991-1994, FAs and short barrels were legal, and any registered during that period are grandfathered.

AFAIK, the state of Washington hasn't filed any charges against Mr. Kwan, which leads me to believe that his collection was not in violation of the much more clearly stated state law.

Which leads me to further believe that the Feds are basically being hard-assed because they're frustrated and pissy about the Wales case.