Skip to comments.He sold illegal AR-15s. Feds agreed to let him go free to avoid hurting gun control efforts
Posted on 10/12/2019 11:07:34 AM PDT by Yo-Yo
(CNN)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.
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."
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.
(Excerpt) Read more at cnn.com ...
And the Deep State judge cancelled the case (essentially) because the figured it would go to the Supreme Court and they would STOMP on the Blue State infringements on the right to make, and keep, and bear arms.
No, they havent ruled any such thing. If the person using the machine owns or has rented the the tools to make the part, it doesnt matter how it is used. They dont have that authority to determine how a firearm is made by mere internal fiat regulation, which is one of the things this judge was going to rule, Yo-Yo. It has not been adjudicated. They cannot tell an individual WHAT tools HE is permitted to use in manufacturing his own firearm, that is not within their regulatory authority. if it were there would be nothing stopping them from prohibiting the use of lathes, machine tools, or even files. For the time that individual has rented that tool, it is his to use as he chooses within the purposes it is designed to do. Thats why I very specifically and carefully stated the CNC machinery and tools had to be rented to the customer for the time he worked on his gun, not just borrowed, and no matter how he used the tool, it would be the customer machining the 80% lower with his rented tools. That is well established in Contract law. It doesnt matter how or where or from whom they were rented. But did you just choose to ignore my point? Youre just pulling that claim out of your nether regions.
From my reading, the prosecutor dropped the charges and plea bargain one charge, not the judge. . . Because the ATF&E didnt want the judges decision to continue which would have ruled in the defendants favor that they were technically firearms due to not meeting the legal definition as written in the law, resulting in 90% of semiautomatic firearms also being covered under the same defect in the laws explicit definition of a firearm receiver! They could not afford having that precedent.
If you re-read the article, Roh asked the ATF in writing if his press the green button 80% lower finishing parties were legal, they replied with a determination letter that it was not.
Im not saying it was right or wrong, but it is a fact that the ATF had made a ruling.
What part of that is beyond the scope of the ATF&Es regulatory authority do YOU fail to grasp? The fact that he got a letter written by some un-named bureaucrat pulling a statement the "pushing a green button to start a machine" is not sufficient to constitute that person making that receiver, IS NOT A "RULING." It cannot be. The authority of the ATF does not include telling people what tools and techniques they may apply to effect the manufacture of a firearm. I am certain Rohs attorney told him the same thing my in-house attorney just told me, affirming my original conclusion. A "ruling" requires a decision by a judge, either a DOJ judge, or an administrative law judge, not some clerk in the ATF office pulling his personal opinions out of his ass and telling an earnest citizen making an honest inquiry, something he just made up.
This is a serious area of debate due to the existence of 3D printers where all you have to do to make a gun receiver is download a file and load it in your computer, run it, and press the enter button. Courts have ruled that is perfectly legal.
There is very little difference between making a 3D printed receiver and finishing one in a computer controlled milling machine, In fact there is MORE personal manufacturing work involved in machining that 80% lower in a CCMM than in 3D printing because Roh had his customers carefully mount the 80% lower into the machine in a machining jig, check the alignment, and then tighten the clamping screws to the proper tension before starting; with a 3D Printer, your only concern is making certain that youre using the proper raw materials, either the right kind of plastic, or if its a metal printer, the right alloy.
So, you see, the ATF&E bureaucrats letter was mischaracterizing the actual law and even their own regulations, making it up ad hoc as they went along in an out of control, rogue manner, and, in fact, was trying to intimidate Roh into just submitting to what the ATF wanted without legal authority to do it.
Those same determination letters are what gave us, then took away, then gave us back again pistol arm braces.
Those same determination letters gave us echo triggers.
Those same determination letters gave us, then took away as machine guns, slide fire stocks.
Again, I'm not saying it's right or wrong, it is what it is, and it is how the ATF has worked for a very long time. I'm stating reality, not the correctness of that reality.
Your beef is not with me. I don't work for the ATF or any other part of the government. I'm a member of the NRA, GSSF, and MCGRO.
And it is our willingness to accept a mere bureaucrats LETTER as the Gospel truth as a RULING as if it were handed down from on high that gets us into these messes. They arent. Thats the problem. They do not have the authority to do this without a proper process which this Judge was CALLING THEM ON, and even a lowly lawyer can call them on by pointing out THEY DO NOT HAVE THE AUTHORITY TO DO IT , by writing a letter, if only we would do it and stick to our, er, guns!
The ONLY person who can do this quickly without due process is the President of the United States by means of an Executive Order. . . and that is subject to review by Congress and reversal by the courts in D.C. That is why bump stocks were banned so quickly after the Las Vegas massacre. I think it was unconstitutional, but lacking Congressional will, and a court case to overturn the EO, it will remain the state of things.
However, absent a specific regulation on the topic outlining exactly what is being regulated, the ATF does not have the power to make these administrative determinations without announcing and publishing the proposed regulation, then publicizing a period of at least 90 days for public comment, publishing the proposed agreed upon regulations which have to be submitted to the DOJ and Attorney General for approval, finalization, and then publication of the final regulation in the Federal Registry at which point they become active on the date they are listed.
An ATF agent or bureaucrat CAN only make a determination based on EXISTING law and regulations. . . Which is what a determination letter is supposed to be for. They cannot just pull one out of their ass and claim it is the legally binding without doing all of that and proclaim it is a determination, which is an experts INTERPRETATION of a specific case compared to how the law and regulation are written. They cant just make up a new rule, such as telling someone what tools and techniques may be used to manufacture a firearm, because there IS NO SUCH REGULATION ON THAT SUBJECT. That is not at all within their purview, never has been, never will be.
Our government servants are simply not allowed to go into a workers shop and say, You can use that tool but not that one, thats OK, but that ones off limits. Hand tools are on our approved list, but power tools are verboten! No! You are not permitted to use anything programmed for any reason, NICHT! WHAT?! You have that one LEASED??? That is forbidden! You must cease and desist using that immediately! You are permitted to use tools only owned personally by you to produce things only you use.
Do you get the absurdity of that position?
My expertise here besides being an NRA Endowment Member, is as a past Federal Firearms License holder, with a class C endorsement for machine guns and other schedule C weapons (we were a police supply house). . . We were applying to also manufacture them, although we only repaired them, because occasionally repair included making new receivers to replace receivers that were not available. We also held a Federal Firearms Importers license.
I was at one timeabout 40 years agoqualified to testify in California Courts as an expert witness in these matters and I turned down a job I was offered to go to work with the ATF in the early 70s as a firearms identifications expert technician because I didnt like what I saw happening in their approach to gun control.
I got out of the firearms industry in the mid-70s, and was entirely out by the early to mid 80s, opting to work for the United States Chamber of Commerce, and later for the National Federation of Independent Business.
Although a lot of my expertise is out-of-date, I do know very intimately how the government regulatory agency model works because we were very regulated out the ying-yang, and that has not changed, except theyve gotten very much more out of control and are more arrogant, and theyve gotten more confrontational and adversarial about it.
I respect your passion on this subject, and frankly I agree with everything you've said in your last reply. The ATF at times have acted precisely like the jack-booted government thugs that Wayne LaPierre so eloquently branded them. Ruby Ridge comes to mind.
However, the law, as passed by congress and signed by the President defines a firearm as "any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of any such weapon." (Title 18 USC §232(4)). The statute does not define "frame or receiver" any further. That is left by statute to the authority of the Attorney General to promulgate rules to expand on that definition.
That expansion is found in 27 CFR §479.11 which defines a frame or receiver as "[t]hat 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." It is this definition of a frame or receiver that the judge had put into question whether a lower receiver of an AR style firearm met. What I don't understand is if the government is in such a panic that this judge's ruling was going to wreak havoc on the ATF's ability to regulate ARs, they simply need to change their definition in the Code of Federal Regulations.
Which is exactly what they did when they attempted to reclassify M855/SS109 "Green Tip" ammunition as "armor piercing handgun ammunition." I know, because I submitted comments in the negative during the public comment period. You can read the aftermath of that comment period here: https://www.atf.gov/news/pr/notice-those-commenting-armor-piercing-ammunition-exemption-framework. The effort was dropped due to overwhelming public comment to the negative.
There was also a proposed regulation reclassifying slide stocks as machine guns instead of firearm parts. Again, I know because I submitted comments in the negative during the public comment period. You can read the response to the comments here: https://www.federalregister.gov/documents/2018/12/26/2018-27763/bump-stock-type-devices#h-106. As you and I are painfully aware, the regulations were ultimately adopted.
Letters of determination as issued by the ATF are not binding law, they are opinions of the ATF. Anyone who disagrees with a letter is free to challenge the letter in court. They essentially describe what the ATF would or would not prosecute. Again, if one wished to challenge one of these letters in court, they are free to do so, but to do so they need to act contrary to the letter, be arrested, and tried in court. Not an avenue that many would voluntarily take just to challenge a ruling, because of the consequences of losing in court.
And unfortunately, it is difficult to challenge these regulations without becoming embroiled in the justice system because of what the courts define as a "lack of standing," which baffles me.
At the time the Northern California office of ATF was gearing up and offered me an opportunity to join them, the news of an wounding of Kenyon Ballew was in the news. He was a 28 year old working man who was wounded by ATF agents who exercised a daytime, knock required warrant, at night around 8:30PM, as Kenyon was finishing his bath, getting ready for bed. The entire warrant was based on an informants information that he knew of someone named Ken who had lots of guns and some grenades who lived in the vicinity. No last name, no exact address, and no further information. When the ruckus started, Kenyon came out of the bedroom in the nude with a replica Walker revolver in his hand, and they shot him in his torso and then they shot him in the head.
There were loads of problems with this ATF raid and warrant.
Later in a Federal Lawsuit, a progressive anti-gun Judge swallowed the ATFs line that Ballew should have known they were coming and were not burglars, despite them avoiding a glass entrance door normally used to enter and leave the apartment, instead electing to use a metal utility door to avoid being identified, and wearing civilian clothing, despite none of them being uniformed officers, and just opened the door to them. . . and that their argument that his having de-militarized and de-activated surplus store souvenir grenades, some made into bookends, was sufficient justification for a raid, because he ALSO was in possession of legal black powder and percussion caps that he COULD, if he had wanted, somehow modified the grenades and restored them to active grenades, just as, in the words of the judge, a person in possession of a bottle, gasoline, and cloth would justify a raid for possession of Molotov Cocktails. As a result the maimed for life Ballew was not entitled to compensation for negligence for being wounded in a misguided and non-justifiable raid. The judge dismissed Ballews suit as the ATF and its agents were immune from such suits.
I did not want to be associated with such a sloppily run organization, which employed keystone Kops agents who did such poor investigations, so I turned them down, despite the good money and benefits.
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