ATF Drops Lower Receiver Case For Fear Of Doing Damage To Other ATF Regulations

BY Herschel Smith
1 month ago

This is a fascinating case, telling us more about the ATF and their world view than anything to do with lower receivers.  Read every word of the report.

For more than a year, Joseph Roh illegally manufactured AR-15-style rifles in a warehouse south of Los Angeles.

His customers, more than two dozen of whom were legally prohibited from possessing a firearm, could push a button, pull a lever, and walk away a short time later with a fully assembled, untraceable semi-automatic weapon for about $1,000, according to court records.

Roh continued his black-market operation despite being warned in person by agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives that he was breaking the law.

But five years after raiding his business and indicting him, federal authorities quietly cut a deal with Roh earlier this year and agreed to drop the charges.

Why?

The judge in the case had issued a tentative order that, in the eyes of prosecutors, threatened to upend the decades-old Gun Control Act and “seriously undermine the ATF’s ability to trace and regulate firearms nationwide.”

In the eyes of prosecutors, the case “threatened to upend the decades-old Gun Control Act and seriously undermine the ATF’s ability to regulate firearms nationwide.”  This is important.

No one can change the law except those who made the law, i.e., the House and Senate.  It may be that the GCA is reprehensible, and it is, and it may be that it is unconstitutional, and it is, but only the House and Senate can change it.  The fear that losing a case, whatever that case may be, could upend the GCA is ridiculous.  Ponder that for a moment and let’s continue.

A case once touted by prosecutors as a crackdown on an illicit firearms factory was suddenly seen as having the potential to pave the way to unfettered access to one of the most demonized guns in America.

Federal authorities preferred to let Roh go free rather than have the ruling become final and potentially create case law that could have a crippling effect on the enforcement of gun laws, several sources familiar with the matter told CNN. Each requested anonymity due to the sensitive nature of the case and its possible implications.

Under US District Court Judge James V. Selna’s interpretation of the law, convicted felons and other people prohibited from possessing firearms would be allowed to legally acquire all the parts necessary to assemble an AR-15-style rifle and other weapons, according to federal prosecutors.

[ … ]

The guns are sometimes assembled from separately acquired parts. Under federal law, the one regulated individual part of a firearm is what’s known as the frame or receiver — a piece that, among other things, provides a housing for the hammer and firing mechanism of a gun.

Though incapable of firing a round, the part is considered a gun in its own right and is subject to the same restrictions as a fully intact firearm. Manufacturers must stamp it with a serial number and licensed dealers are required to conduct background checks on prospective buyers. The restrictions are intended, in part, to keep felons and other people prohibited from possessing firearms from acquiring them piece by piece.

AR-15s, however, do not have a single receiver that meets that definition. They have both an upper and lower receiver — two parts as opposed to the single part described in the law.

At issue in Roh’s case was whether the law could fairly be interpreted to apply to just the lower receiver of the AR-15, as the ATF has been doing for decades.

To rule otherwise “would sweep aside more than 50 years of the ATF’s regulation of AR-15s and other semiautomatic firearms,” prosecutors wrote prior to the judge’s order.

Federal law enforcement officials — and members of Congress — have been on notice about a potential problem with the language in federal gun law as applied to AR-15s since at least 2016.

In July of that year, prosecutors in Northern California abandoned a case against a convicted felon named Alejandro Jimenez after a judge found that the AR-15 lower receiver he was accused of purchasing in an ATF undercover sting did not meet the definition of a receiver under the law.

The ruling and subsequent dismissal drew little notice but prompted a letter to Congress from then-US Attorney General Loretta Lynch. She advised lawmakers that the judge’s decision was not suitable for appeal and that if ATF officials believed the definition should be changed, they should pursue regulatory or administrative action.

Further into the report, we get to the details of the case.

“We here at ROHG Industries have been doing build parties for quite some time,” he wrote in the sparsely worded, one-paragraph letter.

“The customer installs the part into our machine and pushes the start button,” Roh explained.

“Is this legal?” he asked.

In November, the chief of ATF’s Firearms Technology Branch responded to Roh by letter. He told him that if the “build parties” he was referring to resulted in the production of anything the ATF classified as a firearm, he would need to obtain a license for manufacturing.

Roh did not heed that advice. When an undercover ATF agent visited his factory on two occasions in December, he “observed parts and machinery used to manufacture AR-15-type firearms,” court documents state.

Two days before Christmas, the ATF gave Roh a warning in the form of a “cease and desist” letter. It informed him that he was engaged in the unlicensed manufacture of firearms and was at risk of criminal prosecution.

This time, Roh appeared to take heed.

When undercover agents visited his factory in early January, he was not there. But employees told agents they were no longer machining gun parts.

“The ATF had shut them down,” the employees said, according to a report recounting the conversation.

They promised to call the purported customers back when they got the “green light” to resume operations.

Less than a week later they got the call. Their visit to the factory the following day was captured in secretly recorded video obtained by CNN.

Roh, dressed in a T-shirt and New York Yankees baseball cap, appeared congenial and knowledgeable about firearms. He made no secret of his business model.

“Are you here to … make yourself a rifle right now?” he asked the agents during the encounter in January 2014.

“I’m not going to get into trouble or anything like that?” one of the agents asked.

“No,” Roh reassured him. “We’re legal, man.”

Roh told the undercover agents he’d enacted a new policy after being shut down by the ATF: Anyone who wanted machining services performed had to pay a $25 fee to join his “gun club.” That way, he was no longer catering to the general public, he explained.

He told one of the agents he was already considered a member because he’d bought a gun before. Roh told him he would have to vouch for the newcomer so that he could join the gun club as well.

After collecting $25 from the new customer and agreeing to a price of $1,000 each for a pair of rifles he wanted to buy, Roh directed an employee to begin the machining process.

Moments later, he stood next to the agent in front of a large piece of equipment that is computer-coded to precisely machine parts for AR-15-style firearms.

“Go ahead and press the green button,” Roh told the undercover agent.

“The green button?” the agent asked.

“Yeah,” Roh replied. “That basically means that you did it — believe it or not.”

A member of Roh’s staff then oversaw the process of machining and drilling that converted an unfinished lower receiver — an innocuous chunk of metal before the process began — into a finished receiver the ATF considered a firearm under the law.

Roh then added barrels, stocks, bolts, triggers and other parts to make them fully-functioning weapons.

Now to the legal machinations.

When the case finally came to trial last year, much of the four-day proceeding consisted of Nicolaysen, Roh’s defense attorney, grilling ATF officials on arcane gun laws and regulations and the agency’s internal decision-making process.

After both sides presented their evidence, the defense filed a motion for acquittal, arguing that the government’s case against Roh was “legally flawed” because the charges were based on a violation of an internal ATF “classification” as opposed to federal law.

Nicolaysen argued that the definition of a receiver under the relevant federal code differed in various ways from the AR-15 component Roh was accused of manufacturing.

Under the US Code of Federal Regulations, a firearm frame or receiver is defined as: “That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”

The lower receiver in Roh’s case does not have a bolt or breechblock and is not threaded to receive the barrel, Nicolaysen noted.

He called the decision to classify it as a firearm nonetheless, the result of “secret, in-house decision-making.”

Nicolaysen accused the ATF of abusing its authority by pursuing Roh based on his alleged violation of a policy “that masquerades as law.”

He asked the judge to consider recommending that then-US Attorney General Jeff Sessions conduct a review to determine whether there were any similar cases pending around the country or past convictions “sustained on the basis of ATF policy, rather than law.”

Prosecutors acknowledged there were technical differences between the regulation and the lower receiver in Roh’s case, but said the ATF’s interpretation of the regulation was consistent with the intent of federal gun laws. The agency’s reading of the law “should also receive deference from this court,” prosecutors Shawn J. Nelson and Benjamin D. Lichtman argued.

Adopting the defense position, the prosecutors wrote, would be “manifestly incompatible” with the intent of the federal Gun Control Act and would “severely frustrate” enforcement of the law.

The prosecutors’ filing said a ruling in favor of the defense could impact the receivers for up to 90% of the firearms in America.

“The necessary result of this would be that the unregulated parts could be manufactured, sold, and combined with other commercially available parts to create completed, un-serialized firearms which would not be subject to background checks, and which would be untraceable,” the prosecutors wrote. “Defendant’s interpretation would mean that nearly every semi-automatic firearm could be purchased piece by piece with no regulation or background check before a prohibited person would have a firearm.”

Though the trial lasted less than a week, Selna deliberated for more than year. In April, he issued a tentative order in which he determined that the ATF had improperly classified the AR-15 lower receivers in Roh’s case as firearms.

He rejected the prosecution’s argument that the ATF’s interpretation of the regulation describing a receiver could reasonably be applied to the device at issue in Roh’s case.

“There is a disconnect,” the judge wrote.

Selna added that the combination of the federal law and regulation governing the manufacturing of receivers is “unconstitutionally vague” as applied in the case against Roh.

“No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation,” Selna wrote.

Therefore, the judge determined, “Roh did not violate the law by manufacturing receivers.”

The judge’s tentative order also found that the ATF’s in-house classification process failed to comply with federal rule-making procedures. Changes to substantive federal regulations typically include a notice-and-comment period and eventual publication in the Federal Register.

“Consistent with the intent of federal law.”  What the ATF doesn’t want the general public to know is that they’re making up the rules as they go.  Letters to the ATF and ATF responses don’t constitute law, and they don’t even constitute regulation, strictly defined.

First of all, I’ve discussed that before.  There is a difference between law and regulation.  Laws are made by Congress.  Regulation, that behemoth which has so empowered the federal executive and the bureaucratic state, at least has the requirement that it gets published in the federal register, has a comment period, goes through a cost-benefit analysis as required by law, and then the final version gets published in the federal register.  ATF regulations get none of this, and judgments and rules promulgated by the ATF bypass all of these requirements.

Second, it’s apparent that the whole intent of the ATF rules is to limit the firearms in circulation, attempt as best as possible to govern who has them, and know with as much certainty as possible where they are at any particular time.  The rules aren’t arbitrary – they have the purpose the controllers intended.  They make the policy as it suits them at the moment, and then change it on a whim if they deem it more advantageous to their designs.  For a silly example of this, witness their hand-wringing and rule du jour over whether you can legally shoulder a stabilizing brace.

Third, they are so afraid that this decision would have disrupted those designs that they were willing to drop the case outright.  After hearing the truth from this judge, that is, that the ATF was illegally bypassing the regulation process and imposing seemingly arbitrary policies in lieu of real regulations and laws, they literally don’t care.  They are completely unmoved by the revelations of their illegality.

Fourth, the ATF is run by controllers.  We’ve also discussed this before.  As I’ve pointed out before, “The desire to control others is the first sign, incorrigible pathology and premier sin of the wicked.”  These folks are sociopaths.  They have no conscience, and their pathological drive is to control others.

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Comments

  1. On October 14, 2019 at 7:22 am, ragman said:

    The lying and deceit exhibited by our elites knows no bounds. Sociopaths have an unquenchable desire to control everything we do. Their absolute requirement to know everything about a firearm is based in fear. They know that armed proficient men and women are Citizens, not subjects. There are literally hundreds of millions of untraceable guns in this country. Whether home made, inherited, private sales or trades, these guns are lost in the ozone. And this fact drives them batshit crazy. They know we must be disarmed before they implement their communist policies and I believe they also know it’s simply not going to happen. The God given right to defend ourselves and families coupled with our Second Amendment has resulted in a fiercely independent people that will not comply with their illegal, unconstitutional laws. Thanks for posting this excellent article.

  2. On October 14, 2019 at 7:29 am, Heywood said:

    The whole federal bureaucracy, with the arcane laws and volumes of CFR’s are purposefully designed to be vague and “flexible”. They count on the fact that most people will bow to threatening letters because they don’t have the time and resources to fight the feds, and even if you do the odds of finding a judge who isn’t a black robed tyrant intent on crippling your rights is incredibly small. Just like NY just did with their threatening letters to 80% lower companies recently, they are are banking on fear. Isn’t that nice…a government whose authority comes from fear rather than consent?

  3. On October 14, 2019 at 9:10 am, Longbow said:

    And, the Courts typically show “deference” to what ever “regulation” the bureaucrat decides on, rather than apply the (common) Law and the Constitution.

  4. On October 14, 2019 at 10:06 am, scott s. said:

    ATF’s regulatory problems probably stem from being a tax collection agency, where there are many interpretive rulings, Article I courts, etc.

    scott s.
    .

  5. On October 14, 2019 at 10:10 am, Herschel Smith said:

    @scott,

    That’s some of it. But if that’s all there was to it, they would have pursued an increase in NFA permitting fees. I think the problem goes much deeper than that.

  6. On October 14, 2019 at 10:52 am, revjen45 said:

    Let’s compare the Federal Toten Staffeln to the Waffen SS just for laughs:
    Secret Service = 1st SS Division Leibstardarte (Guards Der Fuehrer)
    FBI = 2nd SS Division Totenkopf (Competent and rabid Nazis)
    etc. you get it.
    BATFEIEIO = 36th Waffen Grenadier Division of the SS Dirlewanger (Criminals and fuck-ups)

  7. On October 14, 2019 at 1:12 pm, pyrrhus said:

    “No one can change the law except those who made the law, i.e., the House and Senate.”

    False…If any part of a law is held unconstitutional by an appropriate authority, that part, and sometimes the entire law depending on the crucialness of the part, is a nullity, and does not exist. Many SCOTUS cases have stated this…But in this case, it is a bureaucratic interpretation of the GCA that is at issue, so the precedent would be limited.

  8. On October 14, 2019 at 1:24 pm, Herschel Smith said:

    Yes, yes, we all know that. For my discussion, I’m assuming that the courts wouldn’t overturn the GCA because they’ve never shown a willingness to do so.

    Since the courts won’t act, the only ones who can change it are the people who made it. Thus, I’m back to where I started.

  9. On October 14, 2019 at 1:42 pm, Bad_Brad said:

    I know a guy that’s been serving hard time for about 5 years now for doing the exact same thing. I also no several machine shops that have had CNC Mill confiscated for milling 80 percenters. I wonder if all that’s going to be reversed now? Fat chance.

  10. On October 14, 2019 at 2:24 pm, mtnforge said:

    Superb!
    The pathology of the unelected Amerikan Nomenklatura class.

    Very well done Mr. Herschel.
    Such an essay is a masterpiece in definition of administrative tyranny.
    Bravo.

  11. On October 14, 2019 at 3:40 pm, X said:

    The idea that we live under the rule of law, in which Congress debates the will of the people and exercises its authority only in areas specified in Article 1, Sec. 8 is laughable.

    The language of the Second Amendment is plain as day: “the right of THE PEOPLE to keep and bear arms, SHALL NOT BE INFRINGED.” It does not say “except for full-auto, except for felons, except for handguns, except for SBRs, except for arms sold in interstate commerce, except for ‘assault rifles,’ except for magazines capable of holding 11+ rounds, except for private transfers.” It says “SHALL NOT BE INFRINGED.” And there’s a period at the end of the sentence.

    Yet, “they” simply DGAF and do as they please.

    Face it, we live in a lawless dictatorship. The worst enemy we have is the “conservative” idiot who is deluded into thinking he lives in a “free country.”

    The United States of limited and enumerated powers died in 1865 and it ain’t never coming back.

  12. On October 14, 2019 at 4:06 pm, Matt said:

    “large piece of equipment that is computer-coded to precisely machine parts for AR-15-style firearms”

    Technology is out pacing laws and administrative decisions. This might as well be an open admission of such.

    The signal can not be stopped.

  13. On October 14, 2019 at 9:23 pm, Name (required) said:

    X marks the spot, with his comment at 3:40pm. All gun laws in general, and the ’34NFA and the ’68GCA in particular, are unconstitutional and unacceptable.

    Our grandparents accepted the unacceptable in ’34 and our parents accepted the unacceptable in ’68. They were law abiding, and they abided the legal legal end of our freedom. After those tragic mistakes, it is unexpectedly decent of the BATF to only regulate one part of a two part receiver. The easy, obvious thing would have been to make both halves regulated parts.

  14. On October 15, 2019 at 12:59 am, John Pate said:

    The law is just made up stuff, as I always say. Welcome to recognising Anarcho-tyranny.

  15. On October 15, 2019 at 4:11 pm, Jaque said:

    I do not understand the federal double speak and words that do not say what they mean or mean what they say. The entire Code of Federal Regulations is double speak and confusion. I surmise it is purposely written in a manner to exclude all but highly trained lawyers from understanding it. Try and understand a bill as wrireen by congress ? Most lawmakers do not read or comprehend the bills their colleagues author.
    On the other hand, the Constitution and its Amendments are written in a way that most any High School graduate can understand and comprehend its meaning. Something is terribly wrong when an American must hire another individual at great cost to represent them in legal matters. Its clear to me that governments write laws and regulations to deliberately exclude the average man from defending himself of charges in violating a law he cannot understand.

    Its a racket, and is certainly a conspiracy by governments against the common man. How can any law or regulation by US governments be valid when the constitution plainly and clearly prevents it ? I don’t foresee government simplifying the laws they create. To do so would give the common man a great deal of power if they could understand the laws that are used against them. And if government that is purportedly for, of, and by the people were confronted by men who understood the law by themselves, Americans would once again return to self governance and government service would stop being a career.

  16. On October 16, 2019 at 12:41 pm, MTHead said:

    The biggest problem here is that all guns laws are wrote under the authority of the “commerce clause”. Its illegal to “engage in the commerce” of firearms manufacturing. Without a license.
    That why you can make all the whiskey you want to drink. you just can’t sale it to your friends.
    You can do the same with firearms. That’s why they call them ghost guns. But the ATF doesn’t go after individuals that build them.
    If this were not so they would arrest buyer and salers of 80% lowers for “constructive intent” to build a firearm. Which is the term used for your prosecution if you are caught with certain machine gun parts. Or, if your caught with an AR15 rifle, purchased as same. And a pistol barreled upper. And no other parts. That’s considered “constructive intent” to build an illegal SBR.
    Of course it’s all BS. But most of the unconstitutional crap we see happening in America comes straight out of the commerce clause.

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You are currently reading "ATF Drops Lower Receiver Case For Fear Of Doing Damage To Other ATF Regulations", entry #22065 on The Captain's Journal.

This article is filed under the category(s) BATFE,Gun Control and was published October 13th, 2019 by Herschel Smith.

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