Since the Law Vegas shooting and what some contend has been a takeover by Department of Justice (which in some contexts appears to be accurate), ATF has begun internally reversing prior determinations and making up new interpretations of law, in the absence of informing the Firearms Industry or the public of these reversals and/or new interpretations. More disconcerting, this mentality has now seemingly infected certain U.S. Attorney Offices, which is alarming to say the least.
Although I cannot disclose all of the occasions where ATF has recently reversed its prior determinations or devised a new interpretation of the law or regulation, I can disclose a recent prosecution, of a veteran, where ATF devised a new interpretation out of whole cloth and was successful in convincing the U.S. Attorney’s Office for the Northern District of Ohio to prosecute. The case is U.S. v. Wright, 3:18-CR-162 and it should have the entire Firearms Community alarmed.
Although many of the documents have been sealed by the Court (that should tell you a good bit already), the superseding indictment is publicly available and suggests that Mr. Wright had an unregistered short-barrelled rifle (SBR) that was not registered in the National Firearms Registration and Transfer Record (NFRTR). Regardless of whether you believe the National Firearms Act is constitutional or appropriate, at the time of writing this article, the courts have not yet found it to be unconstitutional and if merely inappropriate, one’s proper recourse is to seek a statutory deletion or revision. Thus, the possession of an unregistered SBR is unlawful. So, why is this case concerning? Unfortunately most of the informative documents have been sealed…that is, except for the Government’s Motion in Limine. (For those who don’t know what a motion in limine is, it is a motion filed by a party which asks the court for an order or ruling limiting or preventing certain evidence from being presented during a trial).
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. These determinations appear to have been part of a discovery dispute, which is also sealed and is evidenced by the Government’s statement that “[t]he Government produced the letters under the protection of a protective order that the Court authorized on August 1, 2018.”. 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,” but I digress…for now.
We quickly learn from the Government that:
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.
Hmmm, so now we know that the issue is whether the piece added to his Ar-15 pistol constituted a “stock” or not. The Government further contends:
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.
Now, everything starts to come into light. The Government is contending that an extension piece that is designed as a cheek rest is actually a stock or if not, Mr. Wright had a vertical foregrip on his pistol. (We call this roping a heifer, where the Government attempts to contend that no matter how you classify the situation, you have violated some law). Now, some of you are probably saying, hold on, ATF previously issued determinations – such as in relation to the Thorsden determination request letter and ATF’s response – that cheek rests and other devices, which were not designed to be shouldered, are not stocks. (For more discussion on cheek weld determinations, see our blog article Ringing In the New Year ATF Style). And they have issued numerous determinations – such as the one regarding the Magpul Angled Fore-Grip – that angled foregrips are not vertical pistol grips. Yep, but that didn’t stop the ATF and the U.S Attorney’s Office from prosecuting Mr. Wright and seeking to preclude the jurors from seeing or hearing of the determination letters, even though, the Government never once contended that Mr. Wright actually shouldered the cheek weld extension or utilized the angled foregrip.
For those interested in what the products involved actually were, you can discern them from the Certification of Exhibits, which thankfully wasn’t sealed. And here is the docket.
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…