ATF Prosecutes Ohio Man for AR Pistol with Brace

[InterestedBystander]

Full story at link

 

https://www.range365.com/atf-prosecutes-ohio-man-for-ar-pistol-with-brace

 

The Bureau has defied its own definitions, saying that adding a pistol brace to a pistol made it a short-barreled rifle.

 

...Legal accessories added to an AR pistol landed an Ohio man in hot water with the Bureau of Alcohol, Tobacco, and Firearms.

 

The Prince Law Firms blog recently brought attention to the case of U.S. v. Wright (3:18-CR-16), in which the northern Ohio man is charged with a series of violations regarding the accessories he added to a Sharps Bros. AR-15 pistol known as The Jack. The ATF alleges that the added parts created a Short Barreled-Rifle, which the defendant did not register as required by the National Firearms Act.

 

According to the evidence list for the upcoming trail, the equipment that brought about the alleged infraction included a Maxim CQB Pistol AR 15 PDW brace, Stark Express angled foregrip, and a flash suppressor that added about two inches to the 7.75-inch barrel. These items were all previously approved by the Firearms and Ammunition Technology Division, the arm of the ATF charged with responding to technical inquiries and testing and classifying products submitted to them for review, as well as providing technical services to the firearms industry and other members of the public.

 

Luckily there was a happy ending to the saga, with the jury returning a not guilty verdict after a short deliberation....

[IH8IL]

I seem to recall he got charged for going over the lop. He added a cap to the end of the brace and it increased the lop to over the atf 13.5 rule. If its the guy I think it is.

[AlphaKoncepts aka CGS]

On the plus side we have federal case law.

 

Will it stop people from being charged? No. But it will give your lawyer something to argue about.

Gun Laws Are Stupid

[InterestedBystander]

I seem to recall he got charged for going over the lop. He added a cap to the end of the brace and it increased the lop to over the atf 13.5 rule. If its the guy I think it is.

There is a length limit on pistols??? Have you more info on that?

 

While most of the informative documents have been sealed according to story, my impression was they were claiming the brace was a stock, hence their "expert" witness.

[Euler]

...

 

The ATF alleges that the added parts created a Short Barreled-Rifle, which the defendant did not register as required by the National Firearms Act.

 

According to the evidence list for the upcoming trail, the equipment that brought about the alleged infraction included a ... Stark Express angled foregrip ...

I'd say it's not so much the brace, but the foregrip that makes a pistol into an AOW (not an SBR), which still needs a tax stamp. Yeah, angled vs. vertical is supposed to make a difference. I'm not sure I'd buy that, but I guess the ATF previously said it was okay, and the jury held them to that.

[once0217]

It was the brace. You are allowed to have braces but if you put anything on the butt of the brace, even a thin piece of neoprene, it becomes a stock under ATF rules.

[Euler]

...

The U.S. Attorney’s Office even went as far as trying to bar the approval letters from the ATF’s Firearms and Ammunition Technology Division from being used in court.

...

That's actually not surprising. Each side is going to try to get all the other side's evidence tossed out. If one side argues that water is wet, the other side will dispute it if there's an advantage to disputing it.

[chislinger]

On the plus side we have federal case law.

No we don't. Only appellate courts can create case law.

[IH8IL]

 

I seem to recall he got charged for going over the lop. He added a cap to the end of the brace and it increased the lop to over the atf 13.5 rule. If its the guy I think it is.

There is a length limit on pistols??? Have you more info on that?

While most of the informative documents have been sealed according to story, my impression was they were claiming the brace was a stock, hence their "expert" witness.

On length of pull, yes. Over 13.5 lop is rifle territory.

[gunuser17]

I believe that the Truth About Guns report on this case is that the defendant was found not guilty. The ATF measured the length of pull by an incorrect method apparently along with some other issues including that the 13.5" lenght of pull limit was never made public by the ATF.

[bmyers]

https://www.thetruthaboutguns.com/2018/11/daniel-zimmerman/atf-suffers-rare-court-loss-in-ohio-short-barrel-rifle-prosecution/

 

Long story short, an innocent man is free and the ATF hasn’t done an about-face on cheek rests, pistol braces or any other AR accessories they’ve previously said are OK. If you own an SB Tactical stabilizing brace, no one is claiming it’s no longer legal. If you like your pistol brace, you can keep your pistol brace.

[kemikos]

The 13.5" "rule" they cited has never been published by ATF in a public letter. The only place it's ever been used is in the confidential determination letters sent to manufacturers (some of which have been released but weren't intended to be). As such, his lawyers argued that there's no way he could have known that it's a requirement.

 

Then, as it turns out, the ATF measured the LOP at an angle, from the trigger directly to the back of the brace, and came up with a measurement of 13.75". Their own guidelines state that the LOP is to be measured parallel to the barrel, not at an angle. When the defendant's expert measured the LOP using the actual guidelines, it was actually just slightly less than 13.5" - so it was never too short even if the "13.5" rule" was a legitimate thing.

 

https://www.thetruthaboutguns.com/2018/11/daniel-zimmerman/atf-suffers-rare-court-loss-in-ohio-short-barrel-rifle-prosecution/

 

Edit: Double ninja'ed!

[2smartby1/2]

 

I seem to recall he got charged for going over the lop. He added a cap to the end of the brace and it increased the lop to over the atf 13.5 rule. If its the guy I think it is.

There is a length limit on pistols??? Have you more info on that?

 

While most of the informative documents have been sealed according to story, my impression was they were claiming the brace was a stock, hence their "expert" witness.

 

That has always been a lingering question.

 

How can a "pistol" have length of pull when there is no stock?

 

According to this, as long as the LOP is under 13.5 (so don't fully extend the brace), you are OK.

 

 

 

“Length of pull”—for lack of a better word regarding pistol braces—begins to enter a “gray area” above 13.5″. Above 13.5″ begins “to enter shoulder stock area.” (His words. I believe this has to do with the “comfortableness” aspect.) On an AR-15 pistol, the “length of pull” for the Blade is approximately 13.13″, so no issues there. But if you use the Blade on a firearm that requires a large adapter of some sort, please make sure that you only use the dimples up to the point that you remain below the 13.5″ length. Stay below 13.5″ and according to ATF, it’s okay to shoulder a Shockwave Blade.

http://shwat.com/atf-changes-mind-again-all-pistol-braces-can-come-out-of-the-closet/

[es503IL]

 

...

 

The ATF alleges that the added parts created a Short Barreled-Rifle, which the defendant did not register as required by the National Firearms Act.

 

According to the evidence list for the upcoming trail, the equipment that brought about the alleged infraction included a ... Stark Express angled foregrip ...

I'd say it's not so much the brace, but the foregrip that makes a pistol into an AOW (not an SBR), which still needs a tax stamp. Yeah, angled vs. vertical is supposed to make a difference. I'm not sure I'd buy that, but I guess the ATF previously said it was okay, and the jury held them to that.

 

 

This is not always true. As long as the firearm is over 26", you can have a vertical foregrip, as it is no longer easily concealed on your person. The Franklin Armory XO-26-S is a perfect example.

 

If its over 26" it's a "firearm" and not a "pistol", thus removing it from the NFA. No AOW stamp is required. A lawyer in Virginia has helpful posted about this as well, and he's also got an BATFE Technology Branch letter confirming this.

[FF1984]

I've been considering getting an AR pistol but news like this kinda makes the neck hairs raise a bit.

 

On a side note, does anyone else consider it ridiculous these "rules" can change on a whim regardless of the laws in place? No legislation required, no consent of the populace via an elected position, just some random guy in an office with a change of opinion can land an innocent person in court or worse. Granted, from what I read it took the jury a lunch hour to find him not guilty but it could be anyone of us in his shoes.

[2smartby1/2]

I've been considering getting an AR pistol but news like this kinda makes the neck hairs raise a bit.

 

On a side note, does anyone else consider it ridiculous these "rules" can change on a whim regardless of the laws in place? No legislation required, no consent of the populace via an elected position, just some random guy in an office with a change of opinion can land an innocent person in court or worse. Granted, from what I read it took the jury a lunch hour to find him not guilty but it could be anyone of us in his shoes.

It is actually one of the reasons why I gave AR's a chance. I came to the conclusion that there are too many out there and too many loopholes to ever put the genie back in the bottle, especially with the AR platform.

 

The rules in place were not made for weapons that can change barrel lengths (complete uppers), caliber, and pistol/rifle designation (stocks/braces) in seconds with no tools.

[chicagoresident]

 

 

...

The ATF alleges that the added parts created a Short Barreled-Rifle, which the defendant did not register as required by the National Firearms Act.

According to the evidence list for the upcoming trail, the equipment that brought about the alleged infraction included a ... Stark Express angled foregrip ...

 

I'd say it's not so much the brace, but the foregrip that makes a pistol into an AOW (not an SBR), which still needs a tax stamp. Yeah, angled vs. vertical is supposed to make a difference. I'm not sure I'd buy that, but I guess the ATF previously said it was okay, and the jury held them to that.

This is not always true. As long as the firearm is over 26", you can have a vertical foregrip, as it is no longer easily concealed on your person. The Franklin Armory XO-26-S is a perfect example.

 

If its over 26" it's a "firearm" and not a "pistol", thus removing it from the NFA. No AOW stamp is required. A lawyer in Virginia has helpful posted about this as well, and he's also got an BATFE Technology Branch letter confirming this.

This was my understanding as well. Hence the Shockwave shotguns are legal without needing a stamp.

 

AOW is under 26" overall in length as a smoothbore (not rifled) shotgun form or a pistol under 26" without a stock but with a vertical foregrip. I don't understand where the issue is with adding length to the barrel.

 

Unless they were trying to say the angled forgrip was a vertical forgrip (it's not) and the 2inch flash suppressor because it wasn't pinned didn't count to meet overall length (again, irrelevant because it wasn't a rifle and it didn't need to be over 26").

 

Usually the courts give a free pass anyways on the pinned VS unpinned stuff as it's difficult to argue a legal definition of "broken down", "permanently attached", and a functioning piece of a firearm which the bullet passes through. Also in this case the clear as mud definition of how to measure overall length was also argued.

https://www.isba.org/cases/illinois/appellate/2015/08/04/peoplevshreffler

[2smartby1/2]

The ATF rules are a mess, and are difficult for people that actually have these weapons to keep straight, especially with additional state laws.

 

Assuming we are talking about rifled barrels for AR's in Illinois, I think it goes like this:

 

#1. OAL =>26" + BL =>16" + stock = Rifle. Vertical grip can be added

#2. OAL =>26" +BL <16" + stock = SBR. Vertical grip can be added. (Assuming you can get an SBR in Illinois)

 

Here is where it gets confusing.

#3. OAL does not matter + BL does not matter + brace = Pistol (assuming no vertical grip).

#4. OAL =>26" + BL does not matter + brace = Firearm IF vertical grip is added.

#5. OAL <26" + BL does not matter + brace = AOW IF vertical grip is added.

 

For #4 and #5, I'm not sure which rules come into play if you have a stock instead of a brace. If an OAL is => than 26 inches, but the barrel is < 16"s, I assume that is a firearm. If OAL is <26 inches, but the barrel is => 16 inches...I think that is an AOW.

 

I'm not even sure where LOP rules come into play. My LAW tactical folder pushes my LOP out to 14 inches using the most rearward setting on my SBA3 brace. But as far as I know, there is no official rule of 13.5 inches that has ever been published. How can you have LOP on a brace since it isn't a stock and wasn't meant to be shouldered to begin with? Plus, I don't use the most rearward setting ever, I keep the brace as short as possible. Also, my rail (9"s) is longer than my barrel (8.5"s), but when I add my flash can, that sticks out about 1/2" beyond my rail.

And being that the buffer tube/brace folds....do I measure open or folded?

 

To be safe, I just avoid vertical grips on my pistols....but the laws are still clear as mud. On my .300:

*End of rail to end of fully extended brace has an OAL of 27.75 inches with an LOP of 14 inches.

*End of rail to end of fully retracted brace has an OAL of 25 inches with an LOP of 11.25 inches. (Removing the brace and measuring from the end of the buffer tube shaves about 1/4" off of each measurement).

*End of rail to far end of weapon when folded has an OAL of about 18 inches with an LOP of about 4.25 inches.

(Add 1/2 inch to all OAL's with the KAK included....or subtract 1/2 inch from all OAL's if using barrel instead of rail).

 

Hot mess.....

[tchostler]

wonder how atf got on to this guy? did he post a video, take it to a gun show, shooting at a range, setting in front of a smart tv, cell phone pic...maybe went to the cloud and was turned in by provider.

[2smartby1/2]

wonder how atf got on to this guy? did he post a video, take it to a gun show, shooting at a range, setting in front of a smart tv, cell phone pic...maybe went to the cloud and was turned in by provider.

Domestic dispute led to a search by police.

[JTHunter]

Okay, so this man was found not guilty. Has the prosecution made any noise about appealing that decision?

[Tango7]

The biggest problems I have with the agency (that show how out of control they are):

While most state Statutes allows "the Fire Chief or his designee" to investigate fires, I cannot bill myself as an "Investigator" unless I have completed a certain number of courses successfully, and if I go to court my credentials can become a matter of consideration.

However, at the ATF, a "firearms expert" is a title, not a description of job expertise, training, knowledge or experience, yet the Fed Courts accept the title as the same thing from someone with no training as someone with knowledge of firearms design, construction and operation.

As a LE investigator the procedure and methodology I use conducting my investigations is subject to the Daubert and/or Frye standards, just as the work of every other "professional" is, as well as the generic concept of the "Scientific method", that is, another individual given the same knowledge, tools and data should be able to reach similar results.

Except the ATF. They don't need to prove their methodology, state the methods by which they obtained their results, or show consistency from Case #1 to Case #87. They can say "this is a device that allows the firing of more than one round at a time from a firearm, therefore is meets the definition of a machine gun" and point to a shoelace and be correct within the construct of their own sterile existence.

There are decades of reliance on Case Law and Stare Decisis, so folks looking at the facts of a case have previous decisions upon which to base their opinions and actions. I cannot present a case to a DA for Aggravated Arson if it does not meet the appropriate elements of the Statute.

Except the ATF. If Examiner A tells you "It's Okay" on January 1st, there's no recourse if Examiner B suddenly decides your hi-tops are DD's on March 1st.

As an Investigator I conduct an investigation, review the case and make recommendations to the DA for prosecution, using rules, codified as Statutes or Ordinances, that were constructed by the legislative branch. I can be called as a witness but the actual prosecution is conducted by an outside agency.

The ATF, operating under US Code written by the Legislative Branch, also has the ability to offer interpretations of the Code that go beyond it, and bear the full force of law; they conduct the investigation and are a party involved in the active prosecution, with no separation between rulemaking, investigation and prosecution.

[lilguy]

“Long story short, an innocent man is free and the ATF hasn’t done an about-face on cheek rests, pistol braces or any other AR accessories they’ve previously said are OK. If you own a SB Tactical stabilizing brace, no one is claiming it’s no longer legal. If you like your pistol brace, you can keep your pistol brace.”

 

For now.

[2A4Cook]

If the guy put padding on the end of the brace, he altered it from a brace and into a buttstock. People need to be careful, and stop trying to be slick. You get something to go in a positive direction for us, and there's always got to be a few morons to screw it up for everyone else. This could damned well lead to reconsideration of the ATF's stance on arm braces.

[steveTA84]

NEVER MOD A BRACE IN ANY WAY SHAPE OR FORM and you’re GTG

[chicagoresident]

If the guy put padding on the end of the brace, he altered it from a brace and into a buttstock. People need to be careful, and stop trying to be slick. You get something to go in a positive direction for us, and there's always got to be a few morons to screw it up for everyone else. This could damned well lead to reconsideration of the ATF's stance on arm braces.

Actually these "few morons" that get arrested without other major charges and get not guilty verdicts are giving us the "test cases" we need to strengthen the courts interpretation of the 2nd ammendment. So no, they are not "ruining it for everyone", they are slowly chipping away at unconstitutional law. You should be thanking them.

 

SBR laws were not about portable firepower, they were a quirk of NFA not being able to ban pistols. The idea was that if concealable pistols were banned they wanted to make a provision that someone couldn't make a long gun into a portable pistol.

 

The pistol ban never happened so the SBR provision never made sense from the beginning. But gun grabbers then are the same now, any antigun law is a good law no matter how nonsensical.

[2smartby1/2]

There an an ATF approval letter floating around out there which allows for can tops to be used on pistol braces for storage in a safe. (Search ATF approves cane tips and you will be taken to a certain AR15 forum).

I have a couple of cane tips. While there is foam at the bottom of my safe, I also use cane tips to keep metal buffer tubes from tearing through the foam.

[kemikos]

There an an ATF approval letter floating around out there which allows for can tops to be used on pistol braces for storage in a safe. (Search ATF approves cane tips and you will be taken to a certain AR15 forum).

I have a couple of cane tips. While there is foam at the bottom of my safe, I also use cane tips to keep metal buffer tubes from tearing through the foam.

 

And since the rifle was in the safe when the police found it with the cane tip attached, it was clearly being used for storage. Could it have been left on while shooting? Sure... but there's no evidence that was the intention.

[HeavyDuty]

 

There an an ATF approval letter floating around out there which allows for can tops to be used on pistol braces for storage in a safe. (Search ATF approves cane tips and you will be taken to a certain AR15 forum).

I have a couple of cane tips. While there is foam at the bottom of my safe, I also use cane tips to keep metal buffer tubes from tearing through the foam.

 

And since the rifle was in the safe when the police found it with the cane tip attached, it was clearly being used for storage. Could it have been left on while shooting? Sure... but there's no evidence that was the intention.

From what I read, it was tied in place.