esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Cite?
Letting my son or daughter shoot my Guns?
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anderson76
Active Member
- Feb 16, 2013
- 209
ddeanjohnson,
I do share your interpretation, however, I do urge any reader to proceed with caution for the reasons set forth below. This is a good opportunity to discuss Chow v. State in greater detail and its relevance in a post-SB281 world.
In Chow v. State the Court of Appeals addressed the meaning of the word “transfer” as it was used in former Art. 27 § 442(d). Former Article 27 § 442(d) provided the following transfer restrictions on regulated firearms:
(d) Sale by other than regulated firearms dealer. –
(1) A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed by the prospective purchaser or transferee, in triplicate, and the origin al copy is forwarded by a regulated firearms dealer to the Secretary.”
Former Art. 27 § 442(d) was repealed and re-enacted, without substantive change, as § 5-124(a)(1) of the Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms. Section 5-124(a)(1) was not amended by SB281. It currently reads as follows:
(a) Seven-day waiting period. --
(1) A person who is not a licensee may not sell, rent, transfer, or purchase a regulated firearm until after 7 days following the time a firearm application is executed by the firearm applicant, in triplicate, and the original is forwarded by a licensee to the Secretary.
The pertinent facts in Chow v State are as follows: Chow was contemplating selling a regulated firearm to his friend. He loaned the firearm to his buddy to test fire the weapon. On these facts Chow was convicted for the unlawful “transfer” of a regulated firearm. Chow appealed arguing that loaning a regulated firearms did not amount to a “transfer”. The Court of Appeals agreed with Chow and overturned his conviction.
The Chow Court essential acknowledged the temporary loan of a regulated firearm was a “transfer” within the modern commonly accepted definition of the term. To narrow the definition of the term “transfer” the court interpreted the term within the entire statutory context Former Art. 27 §§ 441 est seq., now re-codified as §§ 5-101 est seq. of the Public Safety Article. After doing so, the court concluded that:
“Transfer,” as defined a t the time of the enactment of § 442(d) and read in harmony with the rest of the Regulated Firearms subheading, has the meaning of a permanent gratuitous transfer, rather than a temporary transfer. And we will not “‘construe the statute with forced or subtle interpretations that limit or extend its application.’” . . . “Transfer” can be ascribed the meaning of “a permanent exchange of title or possession” and not be rendered surplusage, superfluous, meaningless, or nugatory. Each term in the litany laid out in § 44 2(d) has its own meaning. The term “sell” contemplates a permanent exchange for consideration from a seller or transferor of a regulated firearm to a buyer. Conversely, the term “purchase” contemplates a permanent exchange for consideration to a buyer or transferee of a regulated firearm from a seller. “Rent,” as discussed above and defined in § 4 41(t), contemplates a temporary transfer for consideration. None of these words, “sell,” purchase,” or “rent” can be defined to include the permanent gratuitous transfer of a firearm. That type of permanent exchange is covered by the word “transfer” and that is its purpose in the statute, i.e., a permanent gratuitous transfer. Read in context with the rest of the Regulated Firearms subheading, the term “transfer,” as used in § 442(d), is distinguishable from the words “sell,” “rent” and “purchase” in that it means any other permanent exchange of title or possession of a firearm even if it is without consideration. This covers situations of permanent exchange that the other terms fail to ad dress, i.e., in the case of a gift or bequeathment. Therefore, “transfer,” as used in § 442(d), is not surplusage, superfluous, meaningless, or nugatory.
Thus Chow v. State stands for the following proposition:
Within the meaning of Former Art. 27, § 442(b), (now re-codified as Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms, § 5-124(a)(1)), the word “transfer” can only refer to a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans. Stated differently, it is permissible to loan a regulated firearm to another person so long as that other person is not otherwise disqualified from possessing a regulated firearm.
Although SB281 did not amend the statutory provision reviewed by the Chow Court, it did add § 5-117.1 to the Regulated Firearms Subtitle. In doing so, SB281 imposed additional restrictions on handguns (handguns are the only species of regulated firearms that the common man can now own – the rest are now banned assault weapons). Newly enacted § 5-117.1, in pertinent part now provides:
§ 5-117.1. Handgun qualification license required for purchase of handguns.
. . .
(c) Requirements. -- A person may purchase, rent, or receive a handgun only if the person:
(i) possesses a valid handgun qualification license . . .
The question now becomes, what does it mean to “receive a handgun”? Can I temporarily let my kid “receive” my handgun while we are at the range? Unfortunately, the dictionary definition of the term if rather broad. Websters Online defines “receive” as: to get or be given; to come into possession of . Consequently, if we apply the dictionary definition of the term “receive” this question must be answered in the negative.
The Chow decision informs us that looking to a dictionary to supply the meaning of a particular term is just a starting point. The Chow Court significantly narrowed the meaning of the term “transfer”. Is there a similar basis for narrowing the meaning of the term “receive”? The Chow Court narrowed the meaning of the word “transfer” by interpreting the term within the general statutory context in which it was used. The context in which a word is used informs us of its meaning:
“[W]e analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.” “While the Regulated Firearms subheading does not specifically define the term “transfer,” it does use the term several times throughout its various sections.” “The context in which the term “transfer” is used in the Regulated Firearms subheading’s statutory scheme as a whole must be harmonized with its use in § 442(d).”
Lets apply some Chow rational to interpret the term “receive” in the context of the overall statutory scheme. Take a look at problematic language contained in paragraphs (b) & (c) of the newly enacted § 5-117.1.:
(b) In general. -- A dealer or any other person may not sell, rent, or transfer a handgun to a purchaser, lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer or other person a valid handgun qualification license issued to the purchaser, lessee, or transferee by the Secretary under this section.
(c) Requirements. -- A person may purchase, rent, or receive a handgun only if the person:
(i) possesses a valid handgun qualification license issued to the person by the Secretary in accordance with this section
Notice how the words “sell, rent, or transfer” in paragraph (b) correspond to the terms “purchase, rent, or receive” in paragraph (c). Paragraph (b) imposes liability on the seller, lessor, or transferor of a handgun. Paragraph (c) is the counterpart to Paragraph (b) in that it imposes liability on the purchaser, lessee, or transferee. It would be reasonable to conclude that the word “receive” as used in paragraph (c) refers to the act of receiving a handgun within the context of a “transfer” – Which the Chow Court has interpreted (prior to the enactment of SB281) to mean permanent gratuitous transfer of title or possession. If you agree with this argument, then the term “receive” means the act of receiving permanent title or possession of a handgun – not a temporary loan.
The above argument is based on the assumption that, even after the amendments effectuated by SB281, the term “transfer” still has the same meaning given to it by the Chow Court. Although SB281 amended the Regulated Firearms Subtitle it did not, aside from the HQL requirement, make major substantive changes regarding the transfer or Regulated Firearms. The legislature was clearly aware of the Chow decision; Had it desired to expand the definition of the term “transfer” it certainly could have included more precise language in SB281.
Furthermore, if we interpret the term “receive” to encompass the concept of a temporary receipt / loan of a handgun, disharmony would be created within the statutory framework of the Regulated Firearms Subtitle. More specifically, such a broad definition of the term “receive” would render certain portions of the Subtitle meaningless. If a minor was prohibited from temporarily “receiving” a handgun, then there would be no need for the exception to the possession of regulated firearms contained in § 5-133 which provides:
§ 5-133. Restrictions on possession of regulated firearms
(d) Possession by person under age of 21 years prohibited; exceptions. –
(1) Except as provided in paragraph (2) of this subsection, a person who is under the age of 21 years may not possess a regulated firearm.
(2) Unless a person is otherwise prohibited from possessing a regulated firearm, this subsection does not apply to:
(i) the temporary transfer or possession of a regulated firearm if the person is:
1. under the supervision of another who is at least 21 years old and who is not prohibited by State or federal law from possessing a firearm; and
2. acting with the permission of the parent or legal guardian of the transferee or person in possession;
Moreover, interpreting the term “receive” broadly would seemingly frustrate the legislative intent behind conditioning the issuance of a HQL upon the successful completion of a “firearms safety training course approved by the Secretary”. I realize that the Code, as amended by SB281, does not require the live firing of a handgun – but it seems absurd to condition the issuance of a Handgun Qualification License on the completion of a firearms safety training course in which the student is not permitted to handle a handgun.
For all the reasons stated above, IMO I believe that the term “receive” does not encompass the concept of a temporary receipt / loan of a handgun. It is good to see that the MSP, at least for the time being, apparently shares this view (good thing that the MSP never changes their positions on firearms related issues, especial as they pertain to SBRs). The point I want to make is this: My understanding of the meaning of the term “receive” is not readily apparent. It requires interpreting the term within the overall statutory context and reliance on case law dealing with a former version of the Code. There is room for a contrary interpretation / misinterpretation should some prosecuting authority be so inclined.
ddeanjohnson
autodidact
- Aug 21, 2010
- 801
Sure, it would have been advisable for the General Assembly to define "receive" in the statute, or failing that, for the MSP to do so by regulation, along the lines of the interpretation that they have already adopted. I advocated both of those things at the appropriate points in the process.
But I don't think some of these cases are exactly on point. Guidance on the Maryland law regarding the circumstances under which a Handgun Qualification License is required, given by the head of the Licensing Section of the Maryland State Police, is hardly analogous to advice from a pawn shop operator. The Etheridge case apparently involved a man who took advice from a state judge about federal law, so "the government that advises and the government that prosecutes are not the same" -- i.e., different sovereigns were involved.
I found an interesting discussion of the constitutional caselaw, at least as it existed in 1997, in a Virginia Court of Appeals ruling styled Miller v. Commonwealth. This Miller was a convicted felon who wanted to hunt and thought it might be legal for him to hunt with a muzzleloader rifle. He asked advice on this point from an ATF agent, from an official of the Virginia Department of Game and Inland Fisheries, and from his probation agent, all of whom told him that it would be legal for him to own a muzzleloading rifle. He was later arrested and convicted, under a state law prohibiting possession of a "firearm" by a convicted felon. The Court of Appeals reversed, essentially holding that it would be unfair and violate due process to convict Miller for doing something that his probation officer told him was legal. Here is part of the Virginia court's discussion -- which focuses on three rulings of the United States Supreme Court:
The defense Miller advances grew from a trilogy of United
States Supreme Court cases, Raley v. Ohio, 360 U.S. 423 (1959);
Cox v. Louisiana, 379 U.S. 559 (1965); United States v.
Pennsylvania Chem. Corp., 411 U.S. 655 (1973) (PICCO). The
defendants in Raley were called to answer questions before the
Ohio State legislature's "Un-American Activities Commission."
The chairman of the Commission apprised the defendants that, at
the inquiry, they were entitled to rely upon the privilege
against self-incrimination. A state immunity statute, however,
deprived the defendants of the protection of the privilege.
After relying upon the privilege, the defendants were indicted
for failing to answer the Commission's questions. The Ohio
Supreme Court held that the defendants were presumed to know that
the law deprived them of the protection of the privilege and
that, therefore, they had committed an offense by failing to
answer the questions to which they asserted the privilege. The
United States Supreme Court reversed the convictions, finding
that "the Chairman of the Commission, who clearly appeared to be
the agent of the State in a position to give such assurances,
apprised [the defendants] that the privilege in fact existed."
360 U.S. at 437. The Court further noted that "other members of
the Commission and its counsel made statements which were totally
inconsistent with any belief in the applicability of the immunity
statute, and it is fair to characterize the whole conduct of the
inquiry . . . as identical with what it would have been if Ohio
had had no immunity statute at all." Id. at 438. The Court
found the representations of the Commission "active[ly]
misleading," not "simply vague or even contradictory," and
although the representations were legally erroneous, the
Commission was "the voice of the State most presently speaking to
the [defendants]." Id. at 438-39. The Court concluded that to
sustain the convictions "would be to sanction the most
indefensible sort of entrapment by the State--convicting a
citizen for exercising a privilege which the State clearly had
told him was available to him." Id. at 438.
The defendant in Cox was convicted for demonstrating "near"
a courthouse in violation of a Louisiana statute. The United
States Supreme Court reversed the conviction, finding that "the
highest police officials of the city, in the presence of the
Sheriff and Mayor, in effect told the demonstrators that they
could meet where they did." 379 U.S. at 571. The Court noted
the "lack of specificity" in the use of the word "near" in the
statute, which the court found "foresees a degree of on the spot
administrative interpretation by officials charged with
responsibility for administering and enforcing it." Id. at 568.
The Court found it apparent that demonstrators "would justifiably
tend to rely on [an] administrative interpretation of how `near'
the courthouse a particular demonstration might take place." Id.
at 569. Applying Raley, the Court reversed the defendant's
conviction for demonstrating "near" the courthouse after he had
been told that his demonstration was not "near" the courthouse.
Id. at 571.
The defendant corporation in PICCO was convicted for
discharging industrial refuse into a river, in violation of 13
of the Rivers and Harbors Act of 1899. In its regulations
promulgated under the Act, the Army Corps of Engineers had
consistently construed 13 as limited to discharges that
affected navigation. PICCO's discharge was such that it would
not affect navigation. Relying on Raley and Cox, the Court
reversed the conviction, finding
[t]here can be no question that PICCO had a
right to look to the Corps of Engineers'
regulations for guidance. The Corps is the
responsible administrative agency under the
1899 Act, and "the rulings, interpretations
and opinions of the [responsible agency]
. . . , while not controlling upon the courts
by reason of their authority, do constitute a
body of experience and informed judgment to
which . . . litigants may properly resort for
guidance." Moreover, although the
regulations did not of themselves purport to
create or define the statutory offense in
question, it is certainly true that their
designed purpose was to guide persons as to
the meaning and requirements of the statute.
411 U.S. at 674 (citations omitted). The Court remanded the caseright to look to the Corps of Engineers'
regulations for guidance. The Corps is the
responsible administrative agency under the
1899 Act, and "the rulings, interpretations
and opinions of the [responsible agency]
. . . , while not controlling upon the courts
by reason of their authority, do constitute a
body of experience and informed judgment to
which . . . litigants may properly resort for
guidance." Moreover, although the
regulations did not of themselves purport to
create or define the statutory offense in
question, it is certainly true that their
designed purpose was to guide persons as to
the meaning and requirements of the statute.
for a determination of whether PICCO's reliance was reasonable.
The defense derived from the Raley, Cox, PICCO trilogy
applies where a defendant has reasonably relied upon affirmative
assurances that certain conduct is lawful, when those assurances
are given by a public officer or body charged by law with
responsibility for defining permissible conduct with respect to
the offense at issue. The defense is a due process defense,
Raley, 360 U.S. at 437; Cox, 379 U.S. at 571, grounded in
"traditional notions of fairness inherent in our system of
criminal justice." PICCO, 411 U.S. at 674; United States v.
Caron, 64 F.3d 713, 715 (1st Cir. 1995) (applying standard of
fundamental fairness), modified in part on other grounds, 77 F.3d
1 (1st Cir. 1996), cert. denied, 116 S. Ct. 2569 (1996); United
States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994); United
States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990); United
States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United
States v. Conley, 859 F. Supp. 909, 932 (W.D. Pa. 1994); United
States v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989). See
generally Sean Connelly, Bad Advice: The Entrapment by Estoppel
Doctrine in Criminal Law, 48 U. Miami L. Rev. 627, 632 (1994)
(characterizing Raley and Cox as grounded in "substantive due
process" analysis).
Raley relied on prior United States Supreme Court cases
addressing elementary notions of fairness in the criminal
process, and emphasized that "criminal sanctions are not
supportable if they are to be imposed under `vague and undefined'
commands (citing Lanzetta v. New Jersey, 306 U.S. 451 (1939)); or
if they are `inexplicably contradictory' (citing United States v.
Cardiff, 344 U.S. 174 (1952)); and certainly not if the
Government's conduct constitutes `active misleading' (citing
Johnson v. United States, 318 U.S. 189, 197 (1943))." United
States v. Laub, 385 U.S. 475, 487 (1967).
The due process argument is, in essence, "that the criminal
statute under which the defendant is being prosecuted cannot
constitutionally be applied to the defendant without violating
due process of law, where government officials have misled the
defendant into believing that his conduct was not prohibited."
Ghent, supra, at 1031; see also Studifin, 504 N.Y.S.2d at 610
("[F]or the state to prosecute someone for innocently acting upon
such mistaken advice is akin to throwing water on a man and
arresting him because he's wet.").
The ultimate due process inquiry is whether a defendant's
conviction, for reasonably and in good faith doing that which he
was told he could do, is fundamentally unfair in light of the
content of the information he received and its source. The cases
addressing the defense demonstrate that the defendant must
establish, as a threshold matter, the legal sufficiency of the
content and source of the information received. See PICCO, 411
U.S. at 674-75 (establishing threshold determination that defense
was legally "available"). The application of the defense then
requires a factual determination whether the defendant's reliance
upon the information received was reasonable and in good faith.
See id. The defendant bears the burden of establishing the
affirmative defense. See id. at 675; Howell, 37 F.2d at 1205.
With respect to content, the defense is available only where
the information upon which the defendant has relied is an
affirmative assurance that the conduct giving rise to the
conviction is lawful. In the absence of such an affirmative
assurance, the due process concerns that the defense is designed
to protect are not implicated, and the defense fails. See
Aquino-Chacon, 109 F.3d at 939; United States v. Lowenstein, 108
F.3d 80, 83 (6th Cir. 1997); United States v. Trevino-Martinez,
86 F.3d 65, 69 (5th Cir. 1996), cert. denied, 117 S. Ct. 1109
(1997); United States v. Neville, 82 F.3d 750, 761-62 (7th Cir.),
cert. denied, 117 S. Ct. 249 (1996); United States v. Achter, 52
F.3d 753, 755 (8th Cir. 1995); United States v. French, 46 F.3d
710, 714 (8th Cir. 1995); Howell, 37 F.3d at 1205; United States
v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994); United States
v. Trancoso, 23 F.3d 612, 615 (1st Cir. 1994); United States v.
Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994); United States v.
Corso, 20 F.3d 521, 528 (2d Cir. 1994); United States v. Woodley,
9 F.3d 774, 779 (9th Cir. 1993); United States v. Bazargan, 992
F.2d 844, 849 (8th Cir. 1993); United States v. Clark, 986 F.2d
65, 69 (4th Cir. 1993); United States v. Long, 977 F.2d 1264,
1270-71 (8th Cir. 1992); United States v. LaChapelle, 969 F.2d
632, 637 (8th Cir. 1992); United States v. Hurst, 951 F.2d 1490,
1499 (6th Cir. 1991); United States v. Brebner, 951 F.2d 1017,
1025 (9th Cir. 1991); United States v. Smith, 940 F.2d 710, 715
(1st Cir. 1991); United States v. Paez, 866 F. Supp. 62, 66
(D.P.R. 1994); Conley, 859 F. Supp. at 934.
As to the source of the information, it must be established
that the information was received from a "government official."
See Clark, 986 F.2d at 69 (taxidermist not government official);
United States v. Indelicato, 887 F. Supp. 23, 25 (D. Mass. 1995),
modified in part on other grounds, 97 F.3d 627 (1st Cir. 1996),
cert. denied, 117 S. Ct. 1013 (1997) (private attorney not
government official). Compare Howell, 37 F.3d at 1206 (private
firearms dealer licensed by government not government official),
United States v. Billue, 994 F.2d 1562, 1568-69 (11th Cir. 1993)
(same), and Austin, 915 F.2d at 366-67 (same), with United States
v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987) (firearms
licensee is government official). Indeed, "[t]his is necessary
as a matter of constitutional law because the Due Process Clause
. . . is limited to `state action.'" Connelly, supra, at 633.
However, a government official's status as "state actor" has
not alone been sufficient to invoke the defense in cases
recognizing its availability. The issue is not whether an
"agent" of the state has bound the government by his or her word.
The issue is whether convicting an individual who has reasonably
relied on the advice of a state actor is so fundamentally unfair
as to raise due process concerns. Such concerns are implicated
only when the source of the information is a public officer or
body charged by law with responsibility for defining permissible
conduct with respect to the offense at issue. See Raley, 360
U.S. at 439 (source of information was Commission conducting
inquiry at which defendants asserted privilege against
self-incrimination); Cox, 379 U.S. at 568 (sources of information
were highest police officials of city, who were "charged with
responsibility for administering and enforcing" statute by virtue
of legislature's use of word "near," which "fore[saw] a degree of
on-the-spot administrative interpretation" of permissible
conduct); PICCO, 411 U.S. at 674 (source was Corps of Army
Engineers, which was "the responsible administrative agency under
the [Act defining the offense]" and whose "`rulings,
interpretations and opinions . . . constitute a body of
experience and informed judgment to which . . . litigants may
properly resort for guidance'" as to what conduct was
permissible); Abcasis, 45 F.3d at 43 (source was law enforcement
agent who allegedly solicited defendant to engage in otherwise
criminal conduct as a cooperating informant); United States v.
Thompson, 25 F.3d 1558, 1565 (11th Cir. 1994) (same); Hedges, 912
F.2d at 1405 (source was Air Force Standards of Conduct Officer
who by regulations and direct orders was charged with advising
officer personnel of conflict of interest problems and who
allegedly advised defendant prosecuted under conflict of interest
statute that his conduct did not amount to a conflict of
interest); Brady, 710 F. Supp. at 295 (source was state judge who
had constitutional duty to interpret and apply federal law);
Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993)
(source was State Attorney General, who was "the chief law
officer of the Commonwealth, with the power to set a unified and
consistent legal policy for the Commonwealth," was "statutorily
empowered to `give his opinion upon questions of law submitted to
him,'" and was "acting in an area of his official
responsibilities" in issuing opinion upon which defendants
allegedly relied); Tallmadge, 829 F.2d at 774 (source was federal
firearms licensee charged by Congress with affirmative duty to
question customers concerning criminal record and required by
Treasury Department to inform buyers concerning the restrictions
imposed by Congress on the purchase of firearms).
Many cases involve a defendant who seeks to invoke the
defense as a bar to prosecution by one sovereign for advice
received from an official of another sovereign. The defense has
been nearly universally rejected in this dual-sovereign context.
See generally Caron, 64 F.3d at 715-16. The only exceptions are
cases where a defendant has relied on the advice of a state judge
with respect to federal law. These cases are thought to raise
sufficient fairness concerns to warrant application of the
defense as a bar to federal prosecution. Compare Brady, 710 F.
Supp. at 295, with United States v. Etheridge, 932 F.2d 318, 321
(4th Cir.), and United States v. Bruscantini, 761 F.2d 640, 642
(11th Cir.). Brady, which applied the defense, addressed the
fairness concerns inherent in that context by virtue of the state
court judge's constitutional duty to interpret and apply federal
law. Conversely, Bruscantini and Etheridge concluded that the
dual-sovereignty context eviscerated the fairness concerns giving
rise to the defense.
The rule of Cox and Raley is a narrow
exception to the general principle that
ignorance of the law is no defense. It was
prompted by the Court's observation that
permitting the government to prosecute
individuals who reasonably rely upon that
government's interpretation of the law would
constitute a kind of entrapment. Where,
however, the government that advises and the
government that prosecutes are not the same,
the entrapment problem is different.
Etheridge, 932 F.2d at 321 (quoting Bruscantini, 761 F.2d atexception to the general principle that
ignorance of the law is no defense. It was
prompted by the Court's observation that
permitting the government to prosecute
individuals who reasonably rely upon that
government's interpretation of the law would
constitute a kind of entrapment. Where,
however, the government that advises and the
government that prosecutes are not the same,
the entrapment problem is different.
641-42).
[. . .]
It remains only to be determined whether, based on the
totality of the circumstances, Miller's reliance on the advice of
his probation officer was reasonable and in good faith. Upon
review of the uncontradicted evidence in this case, we find, as a
matter of law, that it was.
[end of quotation from Miller v. Commonwealth]
Last edited:
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
That is a good discussion of the general principles. The cases are consistent with the general point, made in the model penal code, viz., Model Penal Code § 3(b)(iv) (requiring an “official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the defense”); Lafave & Scott, Substantive Criminal Law § 5.1(3) (1984) (same). Now every case will have a different fact pattern and the truism obtains that hard cases make for bad law. In the Virginia case, I am not surprised at the result, given the facts. I would not necessarily expect another state SCT to reach the same result.
The larger point here, confirmed by the case law, is that it is not unfair to the defendant to insist that his reliance be by reference to the state official who actually has the authority to make the representation. How that plays out is a case by case factual inquiry. In this case, that responsible official is not the Licensing Division, per se, (much less a Lt in the Licensing Division), but the Secretary of the Maryland State Police, who has the statutory authority to issue regulations. And think about it for a minute. You cannot reasonably expect to rely on a subordinate official (a mere Lt here) whose representation is not embodied in a regulation or other official document and whose belief may, in fact, be different than his superiors or different from the considered judgment of the Secretary, reached after notice and comment in the rule making process. Allowing Lt. Cook to control the result could be legal chaos, as different low level officers could give out their own, possibly conflicting, opinions. The GA has stated that the Secretary or his designee is authorized to make these statutory interpretations through rule making. Not anyone else. I would expect the courts to follow that route, if presented with the question. I certainly would not advise anyone to stake their freedom or their 2A rights on Lt. Cook's representation.
My point here is not that you are wrong about the correct reading of the statute. Quite to the contrary, I think you are correct, as MSI exhaustedly detailed in their formal comments submitted to the MSP. But I would not urge anyone to rely on Lt. Cook's statements as somehow insulating them from arrest or prosecution. I stress again that the State pursued its reading of "transfer" all the way up the the highest court of MD in Chow. All it takes is one overzealous officer and prosecutor for that result to obtain once again with respect to "receive." They won't let Lt. Cook's views get in their way for a second. I am here to tell you that MD State Attorneys do not lack for zeal.
The larger point here, confirmed by the case law, is that it is not unfair to the defendant to insist that his reliance be by reference to the state official who actually has the authority to make the representation. How that plays out is a case by case factual inquiry. In this case, that responsible official is not the Licensing Division, per se, (much less a Lt in the Licensing Division), but the Secretary of the Maryland State Police, who has the statutory authority to issue regulations. And think about it for a minute. You cannot reasonably expect to rely on a subordinate official (a mere Lt here) whose representation is not embodied in a regulation or other official document and whose belief may, in fact, be different than his superiors or different from the considered judgment of the Secretary, reached after notice and comment in the rule making process. Allowing Lt. Cook to control the result could be legal chaos, as different low level officers could give out their own, possibly conflicting, opinions. The GA has stated that the Secretary or his designee is authorized to make these statutory interpretations through rule making. Not anyone else. I would expect the courts to follow that route, if presented with the question. I certainly would not advise anyone to stake their freedom or their 2A rights on Lt. Cook's representation.
My point here is not that you are wrong about the correct reading of the statute. Quite to the contrary, I think you are correct, as MSI exhaustedly detailed in their formal comments submitted to the MSP. But I would not urge anyone to rely on Lt. Cook's statements as somehow insulating them from arrest or prosecution. I stress again that the State pursued its reading of "transfer" all the way up the the highest court of MD in Chow. All it takes is one overzealous officer and prosecutor for that result to obtain once again with respect to "receive." They won't let Lt. Cook's views get in their way for a second. I am here to tell you that MD State Attorneys do not lack for zeal.
ddeanjohnson
autodidact
- Aug 21, 2010
- 801
I think I respectfully disagree with your position here. Based on your distillation, Miller's conviction really should have been sustained, because Miller didn't get the Virginia attorney general on the phone, or even the head of the state probation office, but just a "mere" bottom-tier probation officer. Miller didn't get a regulation issued, or even any written guidance, just some verbal guidance from his probation officer. But of course, it was quite reasonable for Miller to look to his probation officer to tell him what it was legal for Miller to do. In our "case," Lt. Cook is the commander (the formal title) of the Licensing Section, giving written guidance on the circumstances under which the law requires a person to have one of the licenses issued by the the section that Cook directs! Moreover, when such guidance is issued by the head of the section, it presumably reflects the position of higher-ranking officials on the points being addressed -- and indeed, on this very point we are discussing, and some others on which we corresponded, Lt. Cook clearly engaged in just such consultations before responding to specific questions.
Of course, this does not mean that a state's attorney somewhere might not pursue a trumped-up charge based on some other construction of the law. But any court worth its salt should conclude that, whatever the term "receive" is ultimately determined to cover, a citizen is justified in relying on written guidance from the law enforcement official who heads the office that issues the license in question.
fabsroman
Ultimate Member
This thread shows that the law is clear as mud. A bunch of attorneys on here debating what the law is. Question is, if one of them has to represent you in this matter, and you want to take it as far as possible should you lose at the trial level, what is it going to cost you? A lot. If you lose at the appellate level, it will cost you even more.
Everybody needs to take what has been said in this thread, do a risk/reward analysis, and then decide what he/she wants to do. If you are in the middle of nowhere shooting, the chances of getting caught are a lot slimmer than if you are somewhere shooting that you should not be. There is a lot that goes into the analysis, but it all depends on what the exact facts are and most of us will do our own risk/reward analysis rather quickly because we will all know our own facts and the amount of risk we are willing to take.
Everybody needs to take what has been said in this thread, do a risk/reward analysis, and then decide what he/she wants to do. If you are in the middle of nowhere shooting, the chances of getting caught are a lot slimmer than if you are somewhere shooting that you should not be. There is a lot that goes into the analysis, but it all depends on what the exact facts are and most of us will do our own risk/reward analysis rather quickly because we will all know our own facts and the amount of risk we are willing to take.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Exactly right.
R1Peacock
Active Member
I think everyone should read the District Court Charging Language (revised 10.1.13). Anyone who has ever served as a LEO knows this is the officer's bible when it comes to charging a person. If it isn't in print you can't make it up.
http://www.courts.state.md.us/district/charginglanguage.pdf
Start reading on page 436. The specific law is under PS 5-133d.
Then look below at the exclusions (specifically 5-133 d2).
§5–133.
(a) This section supersedes any restriction that a local jurisdiction in the State imposes on the possession by a private party of a regulated firearm, and the State preempts the right of any local jurisdiction to regulate the possession of a regulated firearm.
(b) A person may not possess a regulated firearm if the person:
(1) has been convicted of a disqualifying crime;
(2) has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years;
(3) is a fugitive from justice;
(4) is a habitual drunkard;
(5) is addicted to a controlled dangerous substance or is a habitual user;
(6) suffers from a mental disorder as defined in § 10–101(f)(2) of the Health – General Article and has a history of violent behavior against the person or another, unless the person has a physician’s certificate that the person is capable of possessing a regulated firearm without undue danger to the person or to another;
(7) has been confined for more than 30 consecutive days to a facility as defined in § 10–101 of the Health – General Article, unless the person has a physician’s certificate that the person is capable of possessing a regulated firearm without undue danger to the person or to another;
(8) except as provided in subsection (e) of this section, is a respondent against whom a current non ex parte civil protective order has been entered under § 4–506 of the Family Law Article; or
(9) if under the age of 30 years at the time of possession, has been adjudicated delinquent by a juvenile court for an act that would be a disqualifying crime if committed by an adult.
(c) (1) A person may not possess a regulated firearm if the person was previously convicted of:
(i) a crime of violence;
(ii) a violation of § 5–602, § 5–603, § 5–604, § 5–605, § 5–612, § 5–613, or § 5–614 of the Criminal Law Article; or
(iii) an offense under the laws of another state or the United States that would constitute one of the crimes listed in item (i) or (ii) of this paragraph if committed in this State.
(2) (i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years and not exceeding 15 years.
(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years.
(iii) Except as otherwise provided in § 4–305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence.
(3) At the time of the commission of the offense, if a period of more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction under paragraph (1)(i) or (ii) of this subsection, including all imprisonment, mandatory supervision, probation, and parole:
(i) the imposition of the mandatory minimum sentence is within the discretion of the court; and
(ii) the mandatory minimum sentence may not be imposed unless the State’s Attorney notifies the person in writing at least 30 days before trial of the State’s intention to seek the mandatory minimum sentence.
(4) Each violation of this subsection is a separate crime.
(d) (1) Except as provided in paragraph (2) of this subsection, a person who is under the age of 21 years may not possess a regulated firearm.
(2) Unless a person is otherwise prohibited from possessing a regulated firearm, this subsection does not apply to:
(i) the temporary transfer or possession of a regulated firearm if the person is:
1. under the supervision of another who is at least 21 years old and who is not prohibited by State or federal law from possessing a firearm; and
2. acting with the permission of the parent or legal guardian of the transferee or person in possession;
(ii) the transfer by inheritance of title, and not of possession, of a regulated firearm;
(iii) a member of the armed forces of the United States or the National Guard while performing official duties;
(iv) the temporary transfer or possession of a regulated firearm if the person is:
1. participating in marksmanship training of a recognized organization; and
2. under the supervision of a qualified instructor;
(v) a person who is required to possess a regulated firearm for employment and who holds a permit under Subtitle 3 of this title; or
(vi) the possession of a firearm for self–defense or the defense of others against a trespasser into the residence of the person in possession or into a residence in which the person in possession is an invited guest.
(e) This section does not apply to a respondent transporting a regulated firearm if the respondent is carrying a civil protective order requiring the surrender of the regulated firearm and:
(1) the regulated firearm is unloaded;
(2) the respondent has notified the law enforcement unit, barracks, or station that the regulated firearm is being transported in accordance with the civil protective order; and
(3) the respondent transports the regulated firearm directly to the law enforcement unit, barracks, or station.
[Previous][Next]
http://www.courts.state.md.us/district/charginglanguage.pdf
Start reading on page 436. The specific law is under PS 5-133d.
Then look below at the exclusions (specifically 5-133 d2).
§5–133.
(a) This section supersedes any restriction that a local jurisdiction in the State imposes on the possession by a private party of a regulated firearm, and the State preempts the right of any local jurisdiction to regulate the possession of a regulated firearm.
(b) A person may not possess a regulated firearm if the person:
(1) has been convicted of a disqualifying crime;
(2) has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years;
(3) is a fugitive from justice;
(4) is a habitual drunkard;
(5) is addicted to a controlled dangerous substance or is a habitual user;
(6) suffers from a mental disorder as defined in § 10–101(f)(2) of the Health – General Article and has a history of violent behavior against the person or another, unless the person has a physician’s certificate that the person is capable of possessing a regulated firearm without undue danger to the person or to another;
(7) has been confined for more than 30 consecutive days to a facility as defined in § 10–101 of the Health – General Article, unless the person has a physician’s certificate that the person is capable of possessing a regulated firearm without undue danger to the person or to another;
(8) except as provided in subsection (e) of this section, is a respondent against whom a current non ex parte civil protective order has been entered under § 4–506 of the Family Law Article; or
(9) if under the age of 30 years at the time of possession, has been adjudicated delinquent by a juvenile court for an act that would be a disqualifying crime if committed by an adult.
(c) (1) A person may not possess a regulated firearm if the person was previously convicted of:
(i) a crime of violence;
(ii) a violation of § 5–602, § 5–603, § 5–604, § 5–605, § 5–612, § 5–613, or § 5–614 of the Criminal Law Article; or
(iii) an offense under the laws of another state or the United States that would constitute one of the crimes listed in item (i) or (ii) of this paragraph if committed in this State.
(2) (i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years and not exceeding 15 years.
(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years.
(iii) Except as otherwise provided in § 4–305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence.
(3) At the time of the commission of the offense, if a period of more than 5 years has elapsed since the person completed serving the sentence for the most recent conviction under paragraph (1)(i) or (ii) of this subsection, including all imprisonment, mandatory supervision, probation, and parole:
(i) the imposition of the mandatory minimum sentence is within the discretion of the court; and
(ii) the mandatory minimum sentence may not be imposed unless the State’s Attorney notifies the person in writing at least 30 days before trial of the State’s intention to seek the mandatory minimum sentence.
(4) Each violation of this subsection is a separate crime.
(d) (1) Except as provided in paragraph (2) of this subsection, a person who is under the age of 21 years may not possess a regulated firearm.
(2) Unless a person is otherwise prohibited from possessing a regulated firearm, this subsection does not apply to:
(i) the temporary transfer or possession of a regulated firearm if the person is:
1. under the supervision of another who is at least 21 years old and who is not prohibited by State or federal law from possessing a firearm; and
2. acting with the permission of the parent or legal guardian of the transferee or person in possession;
(ii) the transfer by inheritance of title, and not of possession, of a regulated firearm;
(iii) a member of the armed forces of the United States or the National Guard while performing official duties;
(iv) the temporary transfer or possession of a regulated firearm if the person is:
1. participating in marksmanship training of a recognized organization; and
2. under the supervision of a qualified instructor;
(v) a person who is required to possess a regulated firearm for employment and who holds a permit under Subtitle 3 of this title; or
(vi) the possession of a firearm for self–defense or the defense of others against a trespasser into the residence of the person in possession or into a residence in which the person in possession is an invited guest.
(e) This section does not apply to a respondent transporting a regulated firearm if the respondent is carrying a civil protective order requiring the surrender of the regulated firearm and:
(1) the regulated firearm is unloaded;
(2) the respondent has notified the law enforcement unit, barracks, or station that the regulated firearm is being transported in accordance with the civil protective order; and
(3) the respondent transports the regulated firearm directly to the law enforcement unit, barracks, or station.
[Previous][Next]
Hunter.50cal
Member
So the law is clear as mud. That is overly clear, but we all knew that before it went into effect. My personsal opinion is that no self respecting officer of the law is going to breakout his fancy silver braclets for me because i let my kids shoot. Lets assume all shooting is done safely and no one is an idiot for the time being at this shooting event.
R1Peacock
Active Member
At this point all officers should have received some sort of in-service legislative update. This is often done during roll call where an ASA will go over the new laws and they often provide the interpretation of the State's Attorney of the county and how he or she will enforce "questionable" laws. The charging language clearly outlines that there are exclusions and those exclusions are spelled out in the Public Safety Law. There is no conspiracy -- the law is the law.
RP
RP
IMBLITZVT
Ultimate Member
Well... I think I was asking about that on a thread on 1919a4.com. A link was posted to a decenting opinion on a constructive possession case. It was in there. I will look and try to find it. However I assure you its out there for the finding as I was floored when I was reading it as is basically means that almost anyone with a chunk of steel and a fence as a MG as its about that easy to make a 2 shot zip gun... I will try and find it and post it.
IMBLITZVT
Ultimate Member
Ok found it... bottom of page 6:
http://www.ca6.uscourts.gov/opinions.pdf/06a0103p-06.pdf
I submit to you that in 8 hours in a full equipped machine shop, any gun can be turned into a MG! ANY! Cut off the barrel, weld on a tub with a basic bolt. Weld a mag in place and cut a bolt with a simple pin handle and zip gun is made! Probably 4 hours should do it. Thats without doing things like cutting sears back to much like on a 1911 trigger job that can cause it to go FA if not done right. So are all 1911s MGs because in 1 hr in a machine shop you can file the sear to get the gun to shoot FA? Remember the ATF has shown that it can be something as simple as a M1a with a broken firing pin spring, slam firing on light commercial primed cartridge.... if you know what case. Or an AR15 slam firing with a M16 safety but an unmodified semi auto receiver.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
The case law that I have seen distinguishes between the application of the "readily restore" test between to guns that were originally capable of full auto (like the M14 involved in the 6th Circuit case) and guns that were originally manufactured solely as semi-auto. See Vollmer and Gravel, attached. But your general point is well taken that there is a lot of slack in the legal test. That said, I don't see any indication in the case law that the government is going after .45 acps or semi auto rifles that were manufactured as semi autos and were not altered in any way. I haven't found any cases involving, for example, an AR-15, or a Ruger Ranch Rifle or any semi auto pistols. Most of the cases are remanufactured M-14s or M-16s which the court found could be "readily restored" to full auto. I don't see much indication that the ATF has been stupid about this.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
As stated earlier, I tend to agree that law enforcement won't arrest or prosecute for conduct expressly permitted by Section 5-133(d) (under age shooting supervised by a person over 21). But 5-133(d) does not purport to cover the "receipt" of AWs or the "receipt" of large capacity magazines or the temporary "receipt" of handguns in informal shooting at a range among persons over 21 who, presumably, could qualify for an HQL. As to such activities, the scope of "receive" is simply an open question.
IMBLITZVT
Ultimate Member
Will do a little later when I have time. Thanks for the links, always looking for a better understanding.
Well then you have not been reading the same cases that I have. There have been two recent cases that come to mind. There was the guy with a Semi AR15 with a few M16 parts in it. It was slam firing and then jamming, as I am sure you know the Olofson case. There was never any accusation that he did any modifications to the semi auto AR15 receiver, correct? The gun was not actually firing in FA, it was slam firing which is a malfunction. Basically he went to jail over having a FA safety installed. The gun was not functional as a FA weapon under safe operation, which slam fire surely is not. The key points in this case were: It got the ATFs attention, He had a FA safety in it and it could shoot more than one round when misfiring. Thats all. Really no difference than a 1911 trigger job where they took a little to much off and were stupid enough to do it more than once and get the PoPo called on them. Either way my point is that in 8 hours in a Machine shop.... anyone can have a MG by that standard!
The other case was actually much worse as you can say Olofson was being stupid. I can't find it right now but it was a case with a semi Auto M1a what was slam firing on soft primers. It was not a converted FA gun. I think it was a something like a Springfield M1a, if I recall correctly. It was another malfunctioning semi auto letting off more than one round before jamming when using commercial ammo with soft primers. If you used Surplus military primers it would not do it. Again this is just a gun not working exactly correctly. This is not even with any time in a Machine shop.
So while they may not be going after people now, they certainly have the framework in place. If we are going by the 8 hour standard as stated in the link I posted, anyone is guilty... All they have to say is that you once looked up how to do a trigger job on your 1911, which also explains how not to make it go FA. From there with a little imagination and this 8 hours in a machine shop standard... they could charge the Pope if they wanted to...
Updated:
The Gravel case is interesting but I think pretty cut and try. Removing the Auto sear would not change it to a semi auto. By that reasoning simply taking a gun apart or keeping it on you in two parts would prevent a gun change. See a cop, flip a switch on a 92FS and remove the slide... now its not a gun. Thats not what I am talking about.
In the Vollmer case I thought this was interesting:
This basically supports what I was saying about the ATF rules and a section of the school of thought on the issue. While it was struck down in court.... you still had to get to court... so you already lost! If they were thinking this direction, that shows you they will go down that road as far as the courts will allow...
Last edited:
Sourkraut115
Active Member
There's a laugh... ASAs at roll call? You're a funny guy.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Olofson was hardly innocent. See Olofson v. U.S. Slip Copy, 2013 WL 4047113 E.D.Wis.,2013 ("The government's final witness, Firearms Enforcement Officer Max Kingery of the ATF, testified that he examined Olofson's firearm on three occasions. ( Id. at 101.) He discovered that the firearm had been assembled with four machinegun components: the trigger, the hammer, the disconnector, and the selector switch. ( Id. at 102.) This would make the weapon fire automatically and would therefore constitute a machinegun. ( Id. at 102–104.) On cross-examination, Kingery acknowledged that SGW/Olympic Arms manufactured its rifles with some M–16 machinegun parts but never with the combination of parts present in Olofson's firearm. ( Id. at 118.) Also, when Kingery tested Olofson's firearm with civilian grade ammunition, he fired a total of 60 rounds with three magazines. ( Id. at 108.) The first time he held the trigger down and emptied all twenty rounds. ( Id. at 109.) The next two magazines fired in five to ten round bursts and the weapon fired automatically each time. ( Id. at 109.) Exhibit 2, which was shown to the jury, was the DVD of Kingery shooting Olofson's firearm on the automatic setting. ( Id. at 110.) Accordingly, the evidence proffered by the government established that Olofson's AR–15 consistently fired automatically from the time Olofson loaned it to Kiernicki through the ATF final testfire. Indeed, Kiernicki testified that it fired automatically on the day it was seized.")
I don't think the AFT is going after originally manufactured semi-autos, given that Congress has expressly allowed them both before 1994 and after the AW ban expired in 2004. If you modify them in such a way that you produce a FA, then that is a different story.
IMBLITZVT
Ultimate Member
This gets right back to Malum prohibitum law. What Olofson did was stupid, nothing more. He did not have the "Intent" that should have been required for a conviction. First he use a legally owned, unmodified SEMI auto receiver, like we all have. What he did was not create a working machine gun capable of full auto fire. He created a gun that was capable of working as a dangerous Zip gun. The law does not see the difference but there is one. First a machine gun gives you FA fire on demand and only on demand. A Zip gun is an uncontrolled release of ammo. Actually what he had was worse than a Zip gun because his gun was creating a dangerous situation where it was possible to have an out of battery explosion! Since he had no intent to make a MG, he did not drill the receiver or make other arrangements for an auto sear. So basically the Hammer was just following the bolt carrier and often setting off the round in the chamber. It was far from proper full auto fire as... 1. once started, you can't stop it with the trigger. 2. After a burst is fired the gun must be cocked to fire again. Almost like a pump shotgun that shoots a random amount of times between pumping and pulling the trigger. Since it did not have an auto sear, it became possible for the hammer to hit the firing pin before the bolt was lock. So its actually somewhat dangerous just to do and is an issue directly addressed in all MGs.
The problem is that this kind of slam fire - uncontrolled fire happens as firearms break. I had a spring firing pin break on my Semi auto Franchi 12 gauge shotgun. When you closed the bolt, the round would go off. Well if you had more than one round and that kind of thing happened, it MIGHT set them all off. I was lucky and it only set off 1 round in 100. So a double spam fire never happened but certainly could have!. However its not that I had made a MG... I had semi shotgun with a broken firing pin spring!!! However the law does not see the difference! The only thing the law cares about is if it fires more than one round at a time...
Let me ask you this... if you rig a trigger to a fire so that when its pulled once it drops two rounds into the fire which heat them up and set them off... is that a MG fire! One trigger pull and two rounds were fired! How about a sling shot full of 22LR shooting against a wall....etc. So there is some limit to the idea of controlled fire vs uncontrolled fire.
Now Olofson should have seen the issue, if for no other reason than the safety side of it... but either he was to stupid, or to cheap to replace a part or two... However if this means he had a MG... then every AR is a MG. All you have to do is remove the disconnector and you will get the same basic result I believe. Either way, in 8 hours in a Machine shop... you sure as hell can! How long do you think it would take you to cut a lightning link out of sheet of steel in a machine shop? So a semi AR and a sheet of metal are not constructive possession... Oh what intent must play in. However Olofson was not trying to sell a MG. Actually he told the guy not to switch it to the FA position because it malfunctioned. It was not a selling point! Stupid yes... worthy of jail time...NO! The ATF should have told him to put a semi safety in it or else... assuming he fixed it asap, there would have never been any intent and the end of the story!
The case of the M1A that was doubling is much worse... I need to find it!
The point is not that if you mod them... the point is that you could! You don't actually have to have a functioning MG to get charged and sent to jail. Simply owning a MG receiver or a group of parts will do. Add in the machine shop idea and any gun suddenly becomes a possible MG as the ATF recognized and lucky for us the court tossed out. Look at the Akins stocks. ATF letter saying its legal and backed by the fact that no one can make a good case why its not... but ATF changes their mind and all the sudden a legal production becomes a MG.... why well word is because Ruger did not like them doing it with their gun and all the sudden the ATF became interested!
So the key is... not coming to the attention of the ATF. Once you do, like the IRS, they will get you for something! Don't doubt it!
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
I will be troubled by possible scenarios when and if the AFT and U.S. Attorneys and the Criminal Division at DOJ starts prosecuting people merely because they owned a malfunctioning AR 15 AND where the AR -15 has not been altered from original manufacture with additional, or altered parts. I have not seen such a case. Olofson added FOUR MG parts to his AR-15 and the expert testimony was that those four parts were the very four needed to produce AF. Viola, his AR 15 was capable of AF and consistently fired at FA, including bursts. The inference of intent is unmistakable. That it was not proper AF is legally irrelevant (if it was unsafe, as you say, then Olofson was an idiot to boot). For a person who wants to be sure to be on the safe side of the law, there is a good reason to stay away from playing around with remanufactured M-14s and M-16s. There is good reason to stay away from adding MG parts to your AR 15. But, honestly, that should not cause anyone much heartburn, unless, of course, you really are intent on pushing the edge of the legal envelope. Those folks take their chances.
Brooklyn
I stand with John Locke.
By then its to late. Strict liability exists to bypass reasonable doubt. Someday all crime will be strict liability.. but I will be long gone anyway. Those with children to which they wish to leave a legacy of freedom had better get worried right now.
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